ANDREWS'S 

MANUAL 

OF  THE 

CONSTITUTION 


EDUCATION  DEPT» 


MANUAL 


CONSTITUTION 


OF  THE 


UNITED  STATES. 


DESIGNED  FOR  THE  INSTRUCTION  OF  AMERICAN  YOUTH  IN  THE  DUTIES, 
OBLIGATIONS,  AND  RIGHTS  OF  CITIZENSHIP. 


BY 


ISRAEL  WARD  ANDREWS,  D.  D.,  LL.  D., 

President  6/  Marietta  College. 


VAN  ANTWERP,  BRAGG  &  CO., 

137  WALNUT  STREET,  28  BOND  STREET, 

C INC  INN  A  TL  NE  W  YORK. 


Entered  according  to  Act  of  Congress,  "in  the  year  1874,  by 

WILSON,  IliNKLK  &  Co., 
In  the  Office  of  the  Librarian  of  Congress,  stt  Washington. 


EDUCATION 


ECLECTIC  PRESS: 

VAN  ANTWERP,  BRAGG  ft  CO. 
CINCINNATI. 


TO  THE 

TRUSTEES  OF  MARIETTA  COLLEGE, 

WITH   WHOM, 
FOR  MORE  THAN  A  THIRD  OF  A  CENTURY, 

THE  AUTHOR 

HAS  BEEN  MOST  PLEASANTLY  ASSOCIATED, 
THIS  VOLUME 

Is  GRATEFULLY  INSCRIBED. 


M69879 


Clii) 


PBEFACE. 


THIS  work  has  grown  out  of  the  necessities  and  ex 
perience  of  the  class-room.  For  the  proper  instruction 
of  the  student  in  the  important  subject  of  civil  gov 
ernment,  a  clear  exposition  of  the  great  principles  of 
the  Constitution  is  needed,  with  a  summary  of  the 
legislative  provisions  in  which  they  nave  been  em 
bodied.  When  the  author  took  charge  of  this  depart 
ment  of  study,  he  found  himself  embarrassed  in  both 
these  respects,  and  especially  the  latter.  Questions  were 
continually  suggesting  themselves,  to  which  answers 
could  be  obtained  only  after  laborious  research. 

Urged  on  by  a  deep  interest  in  the  subject,  and 
availing  himself  of  the  unusual  facilities  for  the  prose 
cution  of  studies  of  this  character  furnished  by  the 
library  of  the  College,  the  author  entered  upon  a  some 
what  extended  investigation  of  our  governmental  his 
tory.  The  materials  thus  accumulated,  and  accumulat 
ing,  having  for  some  years  furnished  the  basis  for 
instruction  by  lectures,  have  now  been  condensed  into 
this  form,  and  are  given  to  the  public  in  the  hope 
that  other  instructors  may  be  in  some  measure  relieved 


Vi  PREFACE. 

from  the  excessive  labor  which  similar  personal  exam 
ination  would  involve. 

While  the  primary  object  was  to  provide  a  suitable 
text-book,  a  conviction  that  a  knowledge  of  our  gov 
ernment  can  not  be  too  widely  diffused,  and  that  large 
numbers  would  welcome  a  good  work  on  this  subject, 
has  led  to  the  attempt  to  make  the  volume  a  manual 
adapted  for  consultation  and  reference  by  the  citizens 
at  large.  With  this  end  in  view,  the  author  has  sought 
to  embody  in  the  work  that  kind  —  and  so  far  as  space 
would  allow,  that  amount  —  of  information  on  the 
various  topics  which  an  intelligent  citizen  would  de 
sire  to  possess. 

As  the  value  of  a  work  of  this  kind  depends  in  large 
measure  upon  its  accuracy,  it  is  proper  to  say  that  in 
nearly  every  instance  the  statements  touching  the 
legislation  or  other  action  of  the  government  have 
been  taken  from  official  publications. 

A  careful  revision  of  the  work  has  been  made,  incor 
porating  in  it  all  important  changes  in  the  legislation 
of  the  country,  and  giving  the  practical  workings  of 
the  Constitution  to  the  present  time. 

MARIETTA  COLLEGE, 
August,  1878. 


CONTENTS. 


CHAPTER   I. 

PAGE. 
ClVIL  GOVERNMENT  —  ITS   OBJECT,   ORIGIN,   AND   NATURE  — 

DIFFERENT  FORMS  OF  GOVERNMENT  —  PECULIARITY 
OF  THAT  OF  THE  UNITED  STATES  —  NOT  A  CONSOLI 
DATED  REPUBLIC,  NOR  A  LEAGUE  OF  STATES,  .  .  9 

CHAPTER   II. 

THE  COLONIAL  GOVERNMENTS  —  ROYAL,  PROPRIETARY,  AND 
CHARTER  —  THE  CAUSES  OF  THE  REVOLUTION — THE 
CONTINENTAL  CONGRESS — THE  DECLARATION  OF  IN 
DEPENDENCE,  24 

CHAPTER   III. 

THE  ARTICLES  OF  CONFEDERATION — THEIR   FAILURE — THE 

CONVENTION  TO   FORM  A   CONSTITUTION,          .  .  ,  36 

CHAPTER  IV. 

THE   CONSTITUTION   OF   THE   UNITED   STATES,     ....  45 


Vlll  CONTENTS. 

CHAPTER   V. 

PAGE. 
THE  RATIFICATION  OF  THE  CONSTITUTION  BY  THE  SEVERAL 

STATES, 283 

CHAPTEE   VI. 

THE   ADMISSION    OF  NEW  STATES  —  THE   TERRITORIAL   GOV 
ERNMENTS,      ,         .         . 294 

CHAPTEE   VII. 

PRACTICAL  OPERATION  OF  THE  CONSTITUTION,      .       .        .         314 

CHAPTEE  VIII. 

THE  STATE  GOVERNMENTS, 360 

APPENDIX.       .        .        .  '  .  .        .  371 


CIVIL   GOVERNMENT. 


CHAPTE.K 


CIVIL  GOVERNMENT  —  ITS  OBJECT,  ORIGIN,  AND  NATURE  —  DIFFERENT  FORMS 
OF  GOVERNMENT  —  PECULIARITY  OF  THAT  OF  THE  UNITED  STATES  —  NOT  A 
CONSOLIDATED  REPUBLIC,  NOR  A  LEAGUE  OF  STATES. 

A  KNOWLEDGE  of  the  nature  and  operation  of  the  gov 
ernment  under  which  we  live  is  necessary  for  the  suc 
cessful  prosecution  of  the  business  of  life,  and  to  secure 
the  happiness  of  ourselves  and  of  those  dependent  upon 
us.  We  can  thus  adapt  ourselves  to  the  circumstances 
in  which  we  are  placed,  and  avoid  those  perplexities  and 
difficulties  in  which  one  ignorant  of  the  laws  and  insti 
tutions  of  his  countrj7  is  liable  to  be  involved.  The  fact 
that  a  man  is  subject  to  a  government  is  a  sufficient  rea 
son  for  studying  its  character  and  workings,  although  he 
may  have  no  participation  in  its  management. 

In  a  republican  government  the  importance  of  such 
knowledge  is  still  greater,  because  the  people  not  only  are 
amenable  to  the  laws,  but  also  have  a  voice  in  electing 
those  who  make  and  execute  them.  He  who  lives  under 
a  despotism  should  acquaint  himself  with  its  character 
and  workings  for  his  own  protection;  a  citizen  of  a 
republic  should  do  the  same,  because  he  is  to  some  extent 
responsible  for  the  government. 

Until  within  the  last  few  years,  American^  ha  v,e  been 
lamentably  ignorant  of  their  national  government,  both 

(9) 


10  CIVIL    GOVERNMENT. 

as  to  its  history  and  its  operation.  The  war  of  the  Rebel 
lion,  which  could  hardly  have  occurred  had  the  whole 
peoule  understood  the  true  relation  of  the  States  to  the 
national  government,  has  had  the  effect  to  direct  atten 
tion  to  governmental  questions.  There  is  probably  a 
stronger  desire  for  such  knowledge  now  than  at  any 
previous  time,  and  a  corresponding  demand  for  the  intro 
duction  of  such  studies  into  all  our  schools  of  higher 
grade. 

Two  circumstanced  facilitate  the  acquisition  of  a 
competent  knowledge  of  our  government.  First,  our 
national  existence  extends  over  a  comparatively  brief 
period.  About  a  hundred  years  only  have  passed  since 
we  became  an  independent  people,  while  most  of  the 
civilized  nations  of  the  world  have  had  a  long  and  check 
ered  history.  Second,  our  Constitution  is  a  written 
instrument,  framed  with  the  utmost  care,  and  adopted 
by  the  people  after  the  most  careful  deliberation.  No 
other  nation  has  a  constitution  that  can  compare  with 
it,  either  in  its  comprehensiveness  and  completeness  of 
subject,  or  in  the  precision  of  its  language. 

The  object  of  civil  government  can  not  be  better 
expressed  than  in  the  words  of  our  Constitution.  It  is 
to  "establish  justice,  insure  domestic  tranquillity,  pro 
vide  for  the  common  defense,  promote  the  general  wel 
fare,  and  secure  the  blessings  of  liberty."  These  were 
the  express  ends  to  secure  which  the  people  of  the  United 
States  ordained  and  established  our  national  Constitu 
tion.  These  are  the  ends  which  all  governments,  of 
whatever  form,  are  under  obligation  to  seek.  Civil  gov 
ernments  are  not  established  for  the  good  of  the  rulers, 
but  for  the  good  of  the  people.  They  are  not  for  the 
good  of  one  or  a  few,  at  the  expense  of  the  others,  but 
for  the  good  of  all. 

The  general  good  could  not  be  secured  without  gov 
ernment.  Civil  government  is  thus  a  necessity.  With 
out  it,  justice  could  not  be  established,  or  domestic  tran- 


OBJECT  OF  GOVERNMENT.  11 

quillity  insured,  or  the  common  defense  provided  for,  or 
the  general  welfare  promoted,  or  the  blessings  of  liberty 
secured.  Law  is  the  guardian  of  liberty.  Without  law 
there  would  be  no  liberty,  but  in  its  stead  anarchy.  One 
object  of  civil  government  is  to  protect  us  in  our  rights. 
It  does  this  by  restraining  those  who  would  interfere 
with  these  rights.  Civil  government  is  thus  rendered 
necessary  by  the  disposition  of  some  to  do  wrong  to  oth 
ers,  and  it  can  not  be  dispensed  with  so  long  as  this  dis 
position  to  interfere  with  the  rights  of  others  continues. 

But  government  is  not  merely  repressive.  Its  neces 
sity  is  not  wholly  owing  to  the  fact  that  there  are  wicked 
men  in  every  community.  Law  and  government  are 
essential  for  the  good  as  well  as  for  the  bad.  The  "  gen 
eral  welfare"  is  to  be  promoted,  as  well  as  the  individual 
to  be  protected  in  his  rights.  There  are  many  things  to 
be  done  for  the  advancement  of  a  nation,  which  could 
not  be  done  without  that  combination  and  cooperation 
which  are  found  only  in  governments.  Science  and  art 
are  to  be  fostered,  education  is  to  be  encouraged,  civil 
ization  to  be  advanced.  Government  has  thus  more  to 
do  than  to  restrain  violence,  to  redress  wrongs,  and  to 
punish  the  transgressor.  There  is  government  in  heaven 
as  well  as  on  earth. 

It  is  sometimes  said,  that  government  is  a  necessary 
evil ;  and  that  that  government  is  best  which  governs 
least.  The  tendency  of  such  language  is  to  excite  dis 
trust  and  aversion,  whereas  governments  should  be 
respected,  obeyed,  and  loved.  A  government  founded 
in  justice  and  administered  with  wisdom  is  always  a 
good.  Were  government  a  necessary  evil,  it  would 
be  impossible  to  account  for  the  existence  and  strength 
of  patriotism.  The  love  of  country,  which  is  stronger 
than  the  love  of  kindred,  or  any  other  of  the  natu 
ral  affections,  is  itself  a  proof  that  by  nature  we 
regard  government  as  a  good  and  not  as  an  evil.  There 
may  be  abuses,  but  men  look  forward  to  the  time  when 


12  CIVIL    GOVERNMENT. 

these  will  be  remedied,  and  the  affairs  of  the  country 
administered  with  wisdom  and  justice.  That  is  not  the 
best  government  which  governs  least,  though,  other 
things  being  equal,  that  may  be  the  best  which  makes 
the  least  show  of  governing.  A  wise  ruler,  whether  in 
the  family  or  the  state,  will  never  give  needless  promi 
nence  to  the  fact  that  he  is  a  ruler,  while  an  unwise 
ruler  is  disposed  to  make  a  display  of  his  authority. 
In  a  good  government,  if  the  law  is  broken  punishment 
must  follow;  but  the  better  the  government,  the  less  will 
be  the  tendency  to  break  the  law,  and  therefore  the  less 
the  necessity  of  inflicting  punishment.  In  a  well-regu 
lated  school  or  family  we  see  no  manifestation  of  gov 
ernment,  and  apparently  no  government  is  needed ;  but 
this  apparent  absence  of  government  is  itself  a  proof  of 
the  excellent  manner  in  which  the  government  is 
administered. 

Society  is  the  natural  state  of  man.  His  whole 
constitution  shows  that  the  intention  of  his  Maker  was 
that  he  should  live  in  society  and  under  government. 
History  testifies  that  such  has  been  the  case  from  the 
beginning.  In  every  age  and  in  every  part  of  the  earth, 
men  have  lived  together  in  families,  tribes,  nations. 
They  have  been  under  some  authority.  Civil  society  is 
thus  a  universal  fact.  It  is  not  the  result  of  any  agree 
ment  among  men,  but  is  the  natural  working  out  of  the 
human  constitution.  We  are  born  into  the  nation  as 
into  the  family.  We  do  not  make  society,  we  find  it 
already  existing.  We  are  to  obey  the  laws  of  the  land 
because  they  are  the  laws,  just  as  the  child  is  to  obey 
the  law  of  the  family.  In  neither  case  is  any  consent 
asked. 

When  a  "social  compact"  is  spoken  of  in  connec 
tion  with  civil  government,  it  is  meant  that  there  are 
reciprocal  duties  resting  upon  the  governed  and  upon 
those  who  govern.  Whoever  enters  upon  any  public 
office,  by  the  act  of  doing  so  agrees  to  perform  faithfully 


ORIGIN    OF    GOVERNMENT.  13 

its  duties.  And  whoever  becomes  a  citizen  of  any 
nation,  by  becoming  so  makes  an  implied  agreement 
that  he  will  be  a  good  citizen.  In  this  sense  there  may 
be  said  to  be,  in  an  existing  government,  a  compact 
between  the  governed  and  those  who  govern,  and  a  com 
pact  between  each  citizen  and  all  the  others. 

But  it  is  not  correct  to  say  that  civil  society  derives 
its  authority  through  any  such  compact,  for  then  the 
power  possessed  by  society  would  be  limited  to  that 
received  from  the  individual  men  composing  the  society. 
But  the  powers  of  government  include  those  which 
never  belonged  to  the  individual  man,  and  therefore 
could  never  have  been  conferred  by  him  upon  society. 
Indeed,  if  there  ever  was  a  state  of  nature,  as  some  have 
supposed,  prior  to  the  existence  of  civil  society,  when 
men  lived  without  government,  all  possessing  equal 
rights,  there  could  manifestly  have  been  no  right  to 
govern,  since  no  one  could  have  had  authority  over 
another  who  was  his  equal.  Men  can  not  give  what 
they  do  not  possess,  and  society  could  never  obtain  its 
right  to  govern  from  the  individual  citizens,  since  they 
never  had  such  a  right. 

Suppose,  however,  that  this  idea  of  a  state  of  nature 
antecedent  to  civil  society  were  fact  and  not  fiction,  and 
that  men  lived  without  government,  all  possessing  equal 
rights;  what  is  to  be  done  with  those  who  do  not  choose 
to  give  up  their  rights  ?  Plainly,  the  majority  could 
have  no  authority  to  coerce  a  minority,  and  government 
would  be  an  impossibility.  Nor  could  one  generation 
bind  the  one  succeeding  it;  and  each  new-born  citizen 
would  be  rightfully  independent  of  all  governmental 
control  until  his  individual  rights  should  be  voluntarily 
deposited  in  the  common  stock. 

The  authority  of  civil  society  is  not,  then,  derived  from 
the  individual  citizens  composing  that  society.  They 
surrender  nothing;  society  receives  nothing.  The  fal 
lacy  in  the  theory  of  the  "social  compact?"  considered  as 


14  CIVIL    GOVERNMENT. 

an  explanation  of  the  origin  of  civil  government,  con 
sists  in  confounding  men  as  individuals  with  men  as 
constituting  a  community. 

Wherever  an  independent  community  of  men  can  be 
found  there  is  already  civil  society.  There  is  no  neces 
sity  for  men  to  surrender  a  part  of  their  rights  in  order 
to  form  a  basis  for  authority;  the  authority  exists  with 
out  any  such  surrender.  In  society,  man  has  all  the 
rights  which  he  could  have  in  any  state  of  nature;  if 
any  such  state  of  nature  out  of  society  can  be  conceived 
of.  As  has  been  already  said,  society  is  the  natural  state 
of  man.  Hence  it  is  of  divine  origin.  It  is  the  inten 
tion  of  our  Creator  that  we  should  live  in  society  and 
under  government,  as  it  is  that  the  race  should  be 
grouped  into  families,  and  the  child  be  subject  to  his 
parents.  "The  powers  that  be  are  ordained  of  God." 
"  There  is  no  power  but  of  God."  No  individual  man  has 
any  divine  right  to  be  a  king ;  but  civil  government  is  of 
divine  origin.  Whoever  exercises  legitimately  any  func 
tion  of  the  civil  ruler,  whether  he  be  king  or  president,  leg 
islator  or  judge,  is  exercising  an  authority  which  is  as 
divine  in  its  origin  as  is  the  authority  of  a  parent  over 
his  child. 

Civil  authority  is  of  divine  origin,  and  it  is  lodged 
in  the  people.  It  is  held  by  the  nation  as  a  whole,  and 
not  by  them  as  individuals.  Society  is  not  a  congress 
of  sovereigns.  The  power  of  society  does  not  come  from 
the  individual  members,  but  it  belongs  to  the  nation  as 
such.  The  nation  receives  it  from  God,  as  a  parent  re 
ceives  from  God  his  right  to  govern  his  children.  If  we 
suppose  that  civil  society  possesses  no  authority  except 
what  has  been  imparted  to  it  by  the  individual  mem 
bers,  it  follows,  as  we  have  already  seen,  that  govern 
ment  can  not  be  extended  over  those  who  have  not 
surrendered  their  share  of  sovereignty.  In  such  a  case, 
majorities  would  have  no  right  to  control  minorities. 
The  supposition  that  civil  government  rests  upon  indi- 


POLITICAL  SOVEREIGNTY.  15 

vidual  sovereignty,  would  thus  virtually  destroy  all 
governmental  authority. 

It  may  be  thought  that  the  theory  that  the  authority 
is  in  the  community — the  people  as  a  whole — would  lead 
to  the  other  extreme  of  a  social  despotism.  As,  in  the 
other  case,  the  rights  claimed  for  the  individual  would 
make  government  an  impossibility,  so,  here,  the  rights 
claimed  for  the  people  as  a  whole  would  destroy  all  the 
rights  of  the  individual  citizen.  But,  although  the  sov 
ereignty  is  in  the  people  collectively,  they  have  no  right 
to  exercise  any  authority  which  God  has  not  bestowed 
upon  them.  The  parent  has  no  right  to  govern  his 
child  except  for  the  child's  good ;  neither  has  the  nation 
any  right  to  do  any  thing  which  is  not  for  the  good  of 
the  people.  Each  member  of  the  community  has  inalien 
able  rights,  with  which  society  has  no  right  to  interfere. 
It  is  not  claimed  that  all  rights  come  from  the  state; 
many  do,  but  some  do  not.  They  belong  to  man  as  man. 
Humanly  speaking,  the  sovereignty  is  in  the  nation— 
the  people  collectively.  But  this  sovereignty  is  not 
absolute;  it  must  be  exercised  in  subordination  to  a 
higher  sovereignty  which  recognizes  the  dignity  and 
worth  of  the  human  being. 

A  political  community,  independent  of  all  others, 
framing  its  own  constitution,  and  enacting  its  own  laws 
without  hinderance  or  question  from  any  other  com 
munity — in  short,  a  body  politic,  with  no  political 
superior,  is  a  sovereign  state  or  nation.1  France  and 
England  are  sovereign  nations;  so  is  the  United  States. 
The  sovereignty  is  in  the  state,  as  distinct  from  the  gov 
ernment  of  the  state.  The  people  collectively  constitute 


1  The  word  state  is  used  by  writers  on  government  to  signify  a  sep 
arate  political  community;  it  is  synonymous  with  nation.  In  the 
United  States  it  is  also  applied  to  a  member  of  the  American  Union. 
In  this  volume,  when  used  in  the  former  sense,  it  will  be  written  state; 
when  in  the  latter,  State. 


16  CIVIL    GOVERNMENT. 

the  state ;  the  body  of  men  who  for  the  time  being  are 
invested  by  the  state  with  civil  authority,  constitute  the 
government.  The  political  society  exists  as  a  his 
torical  fact ;  thus  existing,  it  frames  for  itself  a  constitu 
tion  and  adopts  a  government.  The  nation  must  exist 
as  a  separate  political  community  before  it  can  give  itself 
a  constitution.  The  constitution  does  not  constitute  the 
nation,  but  only  the  government  of  the  nation.  A  con 
stitution  is  an  organic  law,  and  presupposes  a  body 
politic  possessing  the  authority  to  enact  such  a  law. 
The  constitution  thus  made  by  a  nation  already  existing, 
prescribes  the  mode  in  which  the  nation  determines  that 
its  governmental  affairs  shall  be  managed.  It  is  a  kind 
of  letter  of  instructions  to  those  who  are  to  act  as  its 
ministers  in  carrying  on  the  government.  It  is  the 
organic  law  to  which  all  other  laws  must  be  conformed. 
The  constitution  is  made  by  the  nation  for  the  guidance 
of  the  government.  The  government  can  not  change  it, 
but  the  nation  can. 

This  distinction  between  the  state,  or  nation,  on 
the  one  hand,  and  the  government  on  the  other,  is  of 
great  importance.  The  sovereignty  is  in  the  nation. 
As  sovereign,  the  nation  may  constitute  the  government 
according  to  its  own  judgment,  and  give  it  such  form  as 
it  pleases.  But  the  sovereignty  is  in  the  nation  as  such, 
and  not  in  the  individual  men  composing  it.  The  will 
of  the  nation  is  expressed  in  the  constitution,  which  is 
the  supreme  law  until  the  nation  chooses  to  alter  it; 
and  this  alteration  must  be  made  in  the  mode  which  the 
nation  has  itself  prescribed  in  the  same  organic  law.  A 
large  majority  of  the  people  may  disapprove  of  a  clause 
in  the  constitution,  but  their  disapprobation  passes  for 
nothing  until  the  obnoxious  clause  is  constitutionally 
removed  from  the  constitution.  The  same  is  true  of  the 
laws  of  a  country.  They  are  supposed  to  be  valid  until 
repealed.  The  constitution  is  made  by  the  people,  and 
the  laws  by  the  government;  but  both  are  in  force  until 


NATURE    OF    GOVERNMENT.  17 

changed  or  repealed  by  the  power  that  enacted  them. 
The  people  as  a  whole  do  not  make  the  laws,  the  govern 
ment  does  not  make  the  constitution. 

Some  writers  distinguish  between  the  constitution 
of  the  nation  and  that  of  the  government.  Jameson 
calls  the  first  a  constitution  considered  as  an  objective 
fact.  It  is  the  "make-up  of  the  commonwealth  as  a 
polit.ical  organism;  that  special  adjustment  of  instru 
mentalities,  powers,  and  functions,  by  which  its  form 
and  operation  are  determined."  The  second  is  a  con 
stitution  considered  as  an  instrument  of  evidence.1  Brown- 
son  says,  "  The  constitution  is  two-fold ;  the  constitu 
tion  of  the  state  or  nation,  and  the  constitution  of  the 
government.  The  constitution  of  the  government  is, 
or  is  held  to  be,  the  work  of  the  nation  itself;  the 
constitution  of  the  state,  or  of  the  people  of  the  state, 
is,  in  its  origin  at  least,  providential,  given  by  God 
himself,  operating  through  historical  events  or  natural 
causes.  The  one  originates  in  law,  the  other  in  his 
torical  fact."2 

The  constitution  of  the  nation  is  unwritten.  The 
constitution  of  the  government  may  be  written  or  un 
written.  The  constitution  of  the  nation  is  its  charac 
ter — what  it  is,  at  any  epoch.  The  constitution  of 
the  government  is  what  the  nation  chooses  to  make 
it.  As  the  nation  changes,  its  constitution  changes 
accordingly;  and  the  nation  should  change  its  govern 
mental  constitution  from  time  to  time,  to  make  it 
correspond  with  the  real  constitution.  The  American 
nation  was  in  existence  a  number  of  years  before  it 
formed  a  written  governmental  constitution.  The  present 
constitution,  which  went  into  operation  in  1789,  has  re 
ceived  slight  modifications  at  different  times,  and  will 
continue  to  be  modified  in  future  years,  as  the  character 


Jameson's  Constitutional  Convention,  p.  66. 
2Brownson's  American  Republic,  p,  138. 
C.  G.  2. 


18  CIVIL  GOVERNMENT. 

of  the  nation  itself  is  changed.  We  shall  see,  when 
the  mode  of  amending  the  Constitution  comes  to  be 
considered,  that  ample  provision  has  been  made  against 
hasty  changes  in  that  instrument.  Indeed,  there  is 
more  reason  to  apprehend  that  needed  changes  will  be 
delayed  too  long,  than  that  those  which  are  unnecessary 
will  be  introduced. 

There  are  various  forms  of  government,  differing  from 
each  other  more  or  less  widely.  In  a  Monarchy,  the 
ruler  is  a  single  person.  An  Aristocracy  is  a  form  of 
government  in  which  the  authority  is  held  by  a  few. 
In  a  Democracy,  the  power  is  exercised  by  the  people 
themselves.  But  most  existing  governments  combine 
two  or  more  of  these  forms. 

In  a  monarchy,  the  whole  authority  is  not  necessarily 
in  a  single  person.  Most  of  the  governments  of  Europe 
are  called  monarchies;  but  in  some  of  them  the  king 
has  less  power  than  the  President  of  the  United  States. 
An  absolute  monarchy  is  a  despotism.  The  monarch 
governs  according  to  his  own  will  and  caprice,  and  not 
according  to  established  laws.  Such  a  government  is 
clearly  illegitimate.  It  is  a  government  of  force.  In 
a  limited  monarchy,  the  king,  prince,  or  emperor,  or 
whatever  he  may  be  called,  though  nominally  the  sov 
ereign,  wields  a  power  more  or  less  restricted.  Great 
Britain,  and  all  the  provinces  subject  to  it,  are  called 
Her  Majesty's  Dominions.  The  government  is  carried 
on  in  the  sovereign's  name.  The  army  and  navy  are 
called  Her  Majesty's  troops  and  ships.  But  at  the 
same  time  her  real  power  is  small.  The  laws  are  en 
acted  by  Parliament,  and  they  are  administered  by  the 
ministers,  who  are  called  Her  Majesty's  government. 
Parliament  is  composed  of  two  houses:  the  House  of 
Lords,  which  is  hereditary,  and  the  House  of  Commons, 
which  is  elective. 

A  Republic  is  properly  a  commonwealth.    The  domain 
belongs  to  the   nation   rather   than  to  the  king  or  the 


OITR  GOVERNMENT  PECULIAR.  19 

nobles.  It  is  a  government  in  which  the  authority  is 
exercised  by  the  representatives  of  the  people.  It  dif 
fers  from  a  Democracy  in  this,  that  in  the  latter  the 
power  is  exercised  by  the  people  themselves,  while  in 
the  former  the  people  elect  representatives  to  act  for 
them.  A  pure  democracy  can  exist  only  in  a  small 
territory,  where  all  the  people  can  meet  and  enact 
laws.  A  republic  may  be  democratic  or  aristocratic. 
If  suffrage  is  universal,  if  the  rulers  are  elected  by 
the  whole  people,  the  government  is  a  democratic  re 
public.  In  proportion  as  suffrage  is  restricted,  and  the 
number  of  voters  diminished,  the  government  becomes 
less  democratic  and  more  aristocratic. 

Most  existing  governments  are,  to  some  extent,  repub 
lican,  although  at  the  same  time  monarchical.  Louis 
Napoleon,  late  emperor  of  the  French,  held  his  office 
by  election.  The  people  of  France  made  him  emperor 
by  their  votes.  The  monarchs  of  England  rule  by  hered 
itary  right :  the  members  of  the  House  of  Lords  hold 
their  seats  by  virtue  of  their  birth,  but  the  members 
of  the  House  of  Commons  are  elected.  The  govern 
ment  is  thus  at  the  same  time  monarchical,  aristo 
cratic,  and  republican ;  but  in  its  republican  part,  it 
is  more  aristocratic  than  democratic,  as  a  large  part 
of  the  people  are  deprived  of  the  right  of  suffrage. 
Macaulay  calls  the  Roman  emperors  republican  magis 
trates  named  by  the  senate. 

Our  own  government  is  peculiar.  John  Quincy 
Adams  speaks  of  it  as  "a  complicated  machine.  It  is 
an  anomaly  in  the  history  of  the  world.  It  is  that 
which  distinguishes  us  from  all  other  nations,  ancient 
and  modern."  Dr.  Brownson  says,  "  The  American  Con 
stitution  has  no  prototype  in  any  prior  constitution. 
The  American  form  of  government  can  be  classed 
throughout  with  none  of  the  forms  of  government  de 
scribed  by  Aristotle,  or  even  by  later  authorities.  Aris 
totle  knew  only  four  forms  of  government :  Monarchy, 


20  CIVIL  GOVERNMENT. 

Aristocracy,  Democracy,  and  Mixed  Governments.  The 
American  form  is  none  of  these,  nor  any  combination 
of  them.  It  is  original,  a  new  contribution  to  political 
science,  and  seeks  to  attain  the  end  of  all  wise  and 
just  government  by  means  unknown  or  forbidden  to 
the  ancients,  and  which  have  been  but  imperfectly 
comprehended  even  by  American  political  writers  them 
selves."  l 

Our  government  is  not  a  simple,  or  consolidated 
republic,  on  the  one  hand,  nor,  on  the  other,  is  it  a 
league  of  States.  Many  seem  to  suppose  that  there  is 
no  middle  ground  between  these  two;  that  the  denial 
of  the  one  is  equivalent  to  the  affirmation  of  the  other. 
The  American  people  constitute  a  nation,  with  a  re 
publican  government.  The  nation  has  a  Constitution 
in  which  the  character  of  the  government  is  clearly 
delineated.  This  Constitution  is  the  supreme  law  of 
the  land.  But  the  country  is  divided  into  divisions, 
called  States,  each  of  which  has  a  constitution.  The 
people  of  the  whole  nation  have  made  the  general 
Constitution,  while  the  people  of  each  State  have  made 
a  constitution  for  that  political  division.  The  national 
Constitution  is  operative  throughout  the  whole  domain; 
it  is  binding  on  all  the  people.  The  constitution  of  a 
State  is  confined  in  its  operation  to  the  State  limits;  be 
yond  them  it  has  no  force.  But  within  the  State,  it  is  the 
organic  law,  whose  provisions,  unless  conflicting  with 
the  national  Constitution  or  the  laws  enacted  under  it, 
must  be  carried  out.  Were  the  government  a  league 
of  States,  there  could  be  no  supreme  national  govern 
ment;  were  the  nation  a  consolidated  republic,  there 
could  be  no  State  constitutions.  Unquestionably,  the 
American  people  are  a  single  people,  a  nation,  in  the 
same  sense,  and  just  as  truly,  as  the  people  of  France. 
But  at  the  same  time  the  national  Constitution  every- 


^rownson's  American  Republic,  p.  5. 


OUR  GOVERNMENT  PECULIAR.  21 

where  recognizes  the  existence  of  the  States,  with  their 
separate  constitutions,  and  their  various  departments. 

Were  our  government  a  simple  republic,  we  should 
have  no  laws  except  those  enacted  at  Washington.  In 
that  case,  a  county  would  bear  to  a  State  the  same  re 
lation  that  a  State  does  to  the  nation,  as  is  some 
times  affirmed  to  be  the  case  now.  But  the  statement 
is  incorrect.  A  county  can  do  nothing  politically  which 
it  is  not  authorized  by  the  State  to  do.  A  State  can 
do  any  thing  politically  which  does  not  contravene  a 
law  or  the  Constitution  of  the  nation.  The  people  of 
a  county,  as  such,  have  no  constitution,  and  have  no 
power  to  form  one.  The  people  of  a  State  have  a  con 
stitution,  and  may  alter  it  at  pleasure,  provided  its 
provisions  are  in  harmony  with  the  national  laws  and 
Constitution.  The  county  originates  nothing;  all  its 
power  comes  to  it  from  a  political  body  above  it.  The 
State  originates  every  thing;  its  power  coming  directly 
from  the  people  themselves. 

But  although  the  States  have  constitutions,  and  de 
rive  their  governmental  authority  from  the  people,  this 
does  not  make  them  sovereign  states,  or  the  general 
government  a  mere  confederacy.  The  American  people 
are  one  people,  yet  their  government  is  not  a  consoli 
dated  one.  They  exist  in  States,  yet  their  government 
is  not  a  confederated  one.  From  the  day  when  the 
Declaration  of  American  Independence  was  made,  they 
have  existed  as  a  nation,  yet  grouped  into  States.  The 
nation  and  the  thirteen  original  States  began  their 
existence  together.  Neither  preceded,  neither  followed. 
The  American  people  "have  not,  as  an  independent 
sovereign  people,  either  established  their  union,  or 
distributed  themselves  into  distinct  and  mutually  in 
dependent  States.  The  union  and  the  distribution, 
the  unity  and  the  distinction,  are  both  original  in 
their  Constitution,  and  they  were  born  United  States, 
as  much  and  as  truly  so  as  the  son  of  a  citizen  is 


22  CIVIL  GOVERNMENT. 

born  a  citizen,  or  as  every  one  born  at  all  is  born  a 
member  of  society,  the  family,  the  tribe,  or  the  nation. 
The  Union  and  the  States  were  born  together,  are  in 
separable  in  their  Constitution,  have  lived  and  grown 
together;  and  no  serious  attempt  till  the  late  secession 
movement  has  been  made  to  separate  them."1 

"Say  the  people  of  the  United  States  are  one  peo 
ple  in  all  respects,  and  under  a  government  which  is 
neither  a  consolidated  nor  a  confederated  government, 
nor  yet  a  mixture  of  the  two,  but  one  in  which  the 
powers  of  government  are  divided  between  a  general 
government  and  particular  governments,  each  emanat 
ing  from  the  same  source,  and  you  will  have  the 
simple  fact."2  "Strictly  speaking,  the  government  is 
one,  and  its  powers  only  are  divided  and  exercised  by 
two  sets  of  agents  or  ministries."  3  To  the  same  pur 
pose  Jameson :  "  And  here  I  may  remark  that  the 
Constitution  of  the  United  States  is  a  part  of  the  con 
stitution  of  each  State,  whether  referred  to  in  it  or 
not,  and  that  the  constitutions  of  all  the  States  form 
a  part  of  the  Constitution  of  the  United  States.  An 
aggregation  of  all  these  constitutional  instruments 
would  be  precisely  the  same  in  principle  as  a  single 
constitution,  which,  framed  by  the  people  of  the  Union, 
should  define  the  powers  of  the  general  government, 
and  then  by  specific  provisions  erect  the  separate  gov 
ernment  of  the  States,  with  all  their  existing  attribu 
tions  and  limitations  of  power."4 

No  other  nation  has  such  a  distribution  of  the 
powers  of  government.  Foreigners  almost  universally 
fail  to  comprehend  it,  and  many  of  our  own  people 
find  it  a  perplexing  subject.  The  general  government 
and  the  particular  governments  together  constitute 
the  government  of  the  United  States.  The  former  is 
general,  as  its  care  extends  to  the  whole  Union ;  the 

1  Am.  Eep.,  p.  222.     2  Id.,  p.  231.    3  Id.,  p.  250.    4  Const.  Con.,  p.  87. 


THE  SOVEREIGNTY  IN  THE  WHOLE  PEOPLE.          23 

governments  of  the  States  are  particular,  as  limited  to 
the  local  interests  of  the  individual  States.  The  two 
in  combination  form  the  one  supreme  national  govern 
ment,  or  government  of  the  United  States.  It  is  one 
government,  exercising  its  powers  in  two  different 
spheres.  The  authority  comes  from  the  same  people, 
the  people  of  the  United  States,  in  whom  is  the  whole 
sovereignty.  As  stated  above  by  Judge  Jameson,  the 
general  Constitution  and  the  constitutions  of  the  States 
might  be  considered  as  one  great  instrument.  There 
are,  first,  those  articles  which  are  concerned  with  the 
interests  of  the  whole,  and  then,  in  succession,  those 
which  relate  to  the  particular  and  local  interests  of 
the  several  States.  Or  we  may  say  that  the  people  of 
each  State  have  two  constitutions;  one  local  and  par 
ticular,  the  other  general.  The  latter  has  been  adopted 
by  them  in  conjunction  with  the  people  of  the  rest  of 
the  nation;  the  former  they  have  adopted  by  them 
selves,  yet  taking  care  that  none  of  its  provisions  are 
in  conflict  with  those  of  the  general  Constitution.  The 
local  constitution  is  no  more  the  constitution  of  a  par 
ticular  State  than  the  general  Constitution  is.  The 
people  of  New  York  by  their  ratification  of  the  gen 
eral  Constitution,  and  the  people  of  Ohio  by  their  adop 
tion  of  it  at  their  entrance  into  the  Union,  have  made 
it  their  own  as  truly  as  those  constitutions  for  the 
adoption  of  which  they  alone  voted.  Every  provision 
of  the  Constitution  of  the  United  States  is  to  be  re 
garded  as  expressing  the  will  of  the  people  of  Ohio  as 
much  as  any  provision  of  the  constitution  of  that  State. 
There  is,  thus,  no  legitimate  place  for  conflict  between 
the  general  government  and  the  governments  of  the 
States,  because  they  have  all  been  formed  by  the  same 
authority — the  people  of  the  nation.  It  was  never  in 
tended  that  these  should  be  arrayed  against  each  other 
like  political  parties,  or  serve  as  "checks  and  balances," 
after  the  example  of  some  other  governments. 


CHAPTER    II. 

THE  COLONIAL  GOVERNMENTS — ROYAL,  PROPRIETARY,  AND  CHARTER — THe 
CAUSES  OF  THE  REVOLUTION— THE  CONTINENTAL  CONGRESS— THE  DEC 
LARATION  OF  INDEPENDENCE. 

THE  Colonies,  which  declared  their  independence  of 
Great  Britain  in  1776,  and  formed  a  new  nation,  known 
from  that  time  as  The  United  States  of  America,  were 
thirteen  in  number,  viz.,  Massachusetts,  New  Hampshire, 
Connecticut,  Rhode  Island,  New  York,  New  Jersey, 
Pennsylvania,  Delaware,  Maryland,  Virginia,  North 
Carolina,  South  Carolina,  and  Georgia.  These  had  been 
settled  at  various  times,  from  1607,  when  the  settlement 
of  Virginia  was  commenced  at  Jamestown,  to  1732,  when 
the  Colony  of  Georgia  was  established.  They  were  not 
all  settled  as  so  many  distinct  colonies,  but  various 
changes  had  taken  place  among  them.  Thus,  the 
Colony  of  Massachusetts,  as  it  existed  at  the  beginning 
of  the  War  of  the  American  Revolution,  embraced  what 
constituted  originally  three  distinct  colonies;  that  of 
Massachusetts,  that  of  New  Plymouth,  and  the  Province 
of  Maine.  The  Colony  of  New  Haven  had  been  merged 
in  that  of  Connecticut.  The  Carolinas,  on  the  other 
hand,  had  been  divided;  and  what  was  at  first  a  single 
colony,  under  the  name  of  Carolina,  was  made  two  in 
1732,  and  the  divisions  were  called  by  the  present  names 
of  North  Carolina  and  South  Carolina. 

All  the  lands  were  held  by  titles  coming  from  the 
British  crown,  which  claimed  the  country  by  the  right 
of  discovery.  Near  the  close  of  the  fifteenth  century, 
King  Henry  the  Seventh  had  sent  out  John  Cabot  on  a 
voyage  of  exploration,  who  discovered  the  Islands  of 

(24) 


THE   COLONIAL   GOVERNMENTS.  25 

Newfoundland  and  St.  John,  and  sailed  along  the  coast 
from  the  fifty-sixth  to  the  thirty-eighth  degree  of  north 
latitude.  All  this  territory,  in  consequence,  was  claimed 
to  belong  to  Great  Britain,  and  by  that  power  grants 
were  made  from  time  to  time  to  companies  and  to  indi 
vidual  proprietors.  Under  the  charters  and  patents  thus 
granted,  settlements  were  made  and  local  governments 
established.  The  colonies  all  acknowledged  allegiance 
to  the  mother  country  while  they  had  no  political  con 
nection  with  one  another. 

The  colonial  governments  have  been  described  by  most 
writers,  following  the  division  given  by  Blackstone,  as 
of  three  kinds;  Provincial,  Proprietary,  and  Charter. 
The  Provincial  governments,  which  were  often  called 
Royal,  had  a  governor  and  council  appointed  by  the 
Crown,  and  a  legislature  whose  upper  house  was  the 
council  and  whose  lower  was  elected  by  the  people.  The 
governor  had  a  negative  upon  all  the  proceedings  of  the 
legislature,  and  could  also  prorogue  or  dissolve  them  at 
pleasure.  Laws  might  be  enacted  not  repugnant  to  the 
laws  of  England,  and  subject  to  the  ratification  of  the 
Crown.  The  governor,  with  the  advice  and  consent  of 
the  council,  could  establish  courts  and  appoint  judges 
and  other  officers. 

In  the  Proprietary  governments,  the  proprietors 
appointed  the  governors,  and  it  was  under  their  author 
ity  that  legislative  assemblies  were  convened.  While  the 
proprietors  thus  exercised  those  prerogatives  which  in 
the  Royal  governments  were  exercised  by  the  Crown, 
the  sovereignty  of  the  mother  country  was,  nevertheless, 
to  be  strictly  maintained. 

In  the  Charter  governments  the  people  had  much 
more  political  power.  Their  relation  to  England  was 
more  like  that  of  the  citizens  of  one  of  our  States  to  the 
nation,  while  that  of  the  people  in  the  Royal  govern 
ments  was  more  like  that  of  the  people  in  one  of  our 
Territories.  The  charter  granted  to  Massachusetts  by 
C.  G.  ;}. 


26  CIVIL    GOVERNMENT. 

Charles  the  First  gave  power  to  elect  annually  a  gov 
ernor,  deputy-governor,  and  eighteen  assistants.  -Four 
"  great  and  general  courts"  were  to  be  held  every  year, 
to  consist  of  the  governor  or  deputy-governor,  the  assist 
ants,  and  the  freemen.  These  courts  were  authorized 
to  appoint  such  officers  as  they  should  think  proper, 
and  also  to  make  such  laws  and  ordinances  as  to  them 
should  seem  meet ;  provided  they  were  not  contrary  to 
the  laws  of  England.1 

Connecticut  and  Rhode  Island  formed  governments  for 
themselves;  the  provisions  of  which  were  afterwards 
secured  to  them  in  charters  granted  by  Charles  the  Sec 
ond,  soon  after  his  restoration  to  the  throne.  The  peo 
ple  of  these  colonies,  by  the  express  words  of  their  char 
ters,  were  entitled  to  the  privileges  of  natural-born  sub 
jects,  and  invested  with  all  the  powers  of  government, 
legislative,  executive,  and  judicial.  The  only  limitation 
to  their  legislative  power  was  that  their  laws  should  not 
be  contrary  to  those  of  England.2 

"The  king  and  parliament  claimed  the  right  to  alter 
and  revoke  these  charters  at  pleasure ;  but  the  colonists, 
on  the  other  hand,  denied  this  right,  and  claimed 
them  to  be  solemn  compacts  between  them  and  the 
Crown,  irrevocable  unless  forfeited  by  some  act  of  the 
grantees.  This  was  a  continual  source  of  contention 
between  the  parent  country  and  the  charter  colonies, 
and  was  one  of  the  causes  which  finally  produced  a  sep 
aration  between  the  two  countries."3 

The  people  of  these  two  colonies  were  indeed  so  well 
satisfied  with  their  charters,  granted  in  1662  and  1663, 
that  they  continued  to  live  under  them  long  after  they 
had  ceased  to  be  colonies,  and  had  become  States  of  the 
American  Union.  Connecticut  did  not  form  a  State  con 
stitution  till  1818,  nor  Rhode  Island  till  1842. 


1  Pitkin's  Pol.  and  Civ.  Hist.  U.  S.,  I,  p.  36. 
2Pitkin,  I,  p.  54.     3Ibid,  p.  55. 


THE   COLONIAL   GOVERNMENTS.  27 

The  colonies  which  had  charter  governments  were,  as 
we  have  seen,  Massachusetts,  Rhode  Island,  and  Con 
necticut. 

The  Royal,  or  Provincial,  governments  were  those  of 
New  Hampshire,  New  York,  Virginia,  and  Georgia;  to 
which  were  added  New  Jersey  in  1702,  and  the  Caro- 
linas  in  1729,  all  which  had  previously  been  under  Pro 
prietary  governments. 

The  colonies  that  continued  under  Proprietary  gov 
ernments  till  the  Revolution  were  Pennsylvania,  Mary 
land,  and  Delaware. 

It  has  been  seen  that  each  of  the  colonies  exercised 
some  of  the  powers  of  government,  while  none  claimed 
to  be  independent  of  England.  In  the  Plymouth  Col 
ony,  for  the  first  twenty  years,  all  the  freemen  met  in 
"general  court"  and  participated  in  making  laws.  In 
1639,  a  house  of  representatives  was  substituted  for  the 
whole  body  of  freemen.  In  Virginia,  a  general  assem 
bly,  composed  of  representatives  from  the  various  planta 
tions,  was  called  in  1619.  This  was  the  first  representa 
tive  legislature  that  ever  sat  in  America.  Eventually, 
all  the  colonies  elected  one  or  both  of  the  branches  of 
their  provincial  legislatures. 

The  first  union  among  any  of  the  colonies  was  formed 
in  1643.  It  embraced  Massachusetts,  Plymouth,  Con 
necticut,  and  New  Haven,  under  the  name  of  "The 
United  Colonies  of  New  England."  Their  object  was  to 
defend  themselves  against  the  Indians,  and  also  to  resist 
the  claims  and  encroachments  of  the  Dutch.1 

In  June,  1754,  commissioners  from  seven  of  the  col 
onies,  viz.,  Massachusetts,  New  Hampshire,  Rhode  Island, 
Connecticut,  New  York,  Pennsylvania,  and  Maryland, 
met  in  Albany  at  the  request  of  the  lords  commissioners 
for  trade.  The  object  was  to  form  a  treaty  with  some  of 
the  Indian  tribes,  and  to  consider  the  best  means  of 


1  Pitkin,  I,  p.  50. 


28  CIVIL    GOVERNMENT. 

defending  America  against  France.  With  reference  to 
this  end  the  British  Secretary  of  State  had  suggested 
that  a  plan  of  union  among  the  colonies  should  be  formed. 
At  this  meeting,  after  the  adoption  of  a  resolution  that  a 
union  of  the  colonies  was  absolutely  necessary  for  their 
preservation,  a  committee  was  appointed,  consisting  of 
one  member  from  each  colony,  to  report  a  plan  of  union. 
One  proposed  by  Dr.  Franklin,  who  was  a  member  of  the 
committee,  was  finally  adopted  by  the  Convention. 

It  provided  for  a  general  government  of  all  the  Ameri 
can  Colonies,  to  consist  of  a  president-general  to  be 
appointed  by  the  Crown,  and  a  grand  council  of  dele 
gates  to  be  chosen  every  three  years  by  the  colonial 
assemblies.  The  president  and  council  were  to  regulate 
all  affairs  with  the  Indians,  to  make  new  settlements  on 
lands  purchased  of  the  Indians,  and  govern  such  settle 
ments,  to  raise  soldiers,  build  forts,  and  equip  vessels  for 
guarding  the  coast  and  protecting  the  trade.  For  these 
purposes,  they  were  to  make  laws  and  levy  such  duties 
and  taxes  as  they  might  deem  just.  The  president  was 
to  have  a  negative  on  all  laws  and  acts  of  the  council, 
and  to  see  that  the  laws  were  executed. 

This  plan  was  adopted  by  the  Convention;  all  the  dele 
gates  voting  for  it  except  those  from  Connecticut.  But 
it  never  went  into  operation,  having  failed  to  obtain  the 
approval  either  of  the  colonies  or  the  mother  country. 
"  It  had  the  singular  fate  of  being  rejected  in  England, 
because  it  left  too  much  power  in  the  hands  of  the  colo 
nists;  and  it  was  disapproved  in  America,  because  it 
transferred  too  much  power  into  the  hands  of  the  Crown." l 

In  1765,  a  Congress  of  delegates  was  held  at  New 
York.  This  was  in  consequence  of  the  passage  of  the 
Stnmp  Act  by  the  British  Parliament  in  March  of  the 
same  year.  That  body  had  determined  to  raise  a  rev 
enue  from  the  colonies  by  taxation,  although  the  colo- 


'Pitkin,  I,  p.  145; 


THE   CAUSES   OF    THE  REVOLUTION.  29 

nists  most  vehemently  protested  against  it.  The  passage 
of  the  Stamp  Act,  which  required  all  legal  documents  to 
be  on  stamped  paper  furnished  by  the  British  govern 
ment,  excited  universal  alarm  in  the  colonies.  The 
Colonial  Assembly  of  Virginia,  at  a  session  held  soon 
after  the  news  reached  America,  adopted  resolutions  of 
the  most  decided  character.  These  resolutions  were 
moved  and  supported  by  the  celebrated  Patrick  Henry. 
When,  in  the  heat  of  debate,  he  exclaimed,  "  Caesar  had 
his  Brutus,  Charles  I.  his  Cromwell,  and  George  III." — he 
was  interrupted  by  the  Speaker  and  others  with  the  cry 
of  "treason."  Pausing  a  moment  and  fixing  his  eye  on 
the  Speaker,  he  added— "may  profit  by  their  example; 
if  this  be  treason,  make  the  most  of  it." 

Meanwhile  Massachusetts  had  voted  that  it  was  desir 
able  that  a  Congress  of  delegates  from  all  the  colonies 
should  be  held.  Accordingly,  Massachusetts,  Rhode 
Island,  Connecticut,  New  York,  New  Jersey,  Pennsyl 
vania,  Delaware,  Maryland,  and  South  Carolina  elected 
commissioners  who  met  at  New  York,  as  stated  above. 
New  Hampshire  approved  of  the  Congress,  but  from  the 
peculiar  situation  of  the  colony  it  was  judged  not  pru 
dent  to  send  delegates.  Virginia,  North  Carolina,  and 
Georgia  were  not  represented,  because  the  governors  of 
those  colonies  refused  to  call  special  assemblies  for  the 
appointment  of  delegates. 

"  This  was  the  first  general  meeting  of  the  colonies 
for  the  purpose  of  considering  their  rights  and  privi 
leges,  and  obtaining  a  redress  for  the  violation  of  them 
on  the  part  of  the  parent  country."1  They  adopted  a 
declaration  of  rights  and  grievances,  which  asserted 
the  claim  of  the  colonists  to  all  the  inherent  rights 
and  liberties  of  subjects  within  the  kingdom  of  Great 
Britain ;  "  that  it  is  inseparably  essential  to  the  free 
dom  of  a  people,  and  the  undoubted  right  of  Eng- 


Pitkin,  I,  p.  180. 


30  CIVIL  GOVERNMENT. 

lishmen,  that  no  taxes  be  imposed  on  them  but  with 
their  own  consent,  given  personally  or  by  their  repre 
sentatives."1 

The  Stamp  Act  was  subsequently  repealed,  but  other 
taxes  and  duties  were  imposed  quite  as  obnoxious  to 
the  colonies.  Their  efforts  to  obtain  redress  being  un 
successful,  it  became  obvious  that  they  must  form  a 
closer  union  for  their  own  protection.  In  1774,  Mas 
sachusetts  recommended  the  assembling  of  a  Conti 
nental  Congress,  to  deliberate  upon  the  state  of  public 
affairs. 

On  the  fifth  of  September,  a  Congress  of  delegates 
from  twelve  colonies  assembled  at  Philadelphia.  Of 
these,  some  were  appointed  by  the  popular  branch  of 
the  Colonial  Assembly,  while  others  were  elected  by 
conventions  of  the  people.  Georgia,  the  youngest  of 
the  colonies,  was  not  represented.  This  is  known  as 
"The  First  Continental  Congress."  "The  Congress  thus 
assembled,"  says  Judge  Story,  "  exercised  de  facto  and  de 
jure  a  sovereign  authority;  not  as  the  delegated  agents 
of  the  governments  de  facto  of  the  colonies,  but  in 
virtue  of  original  powers  derived  from  the  people." 

Among  the  distinguished  members  of  this  Congress, 
were  John  Adams  and  Samuel  Adams  of  Massachusetts, 
Roger  Sherman  of  Connecticut,  John  Jay  of  New  York, 
Peyton  Randolph,  Richard  H.  Lee,  Patrick  Henry,  and 
George  Washington  of  Virginia.  Peyton  Randolph  was 
chosen  president.  The  first  resolution  adopted  was, 
"That  in  determining  questions  in  this  Congress  each 
colony  or  province  shall  have  one  vote;  the  Congress 
not  being  possessed  of,  or  at  present  able  to  procure, 
proper  materials  for  ascertaining  the  importance  of 
each  colony." 2  This  rule  of  equal  suffrage  established 
because  the  Congress  did  not  possess  the  information 
requisite  for  establishing  a  more  equitable  one,  re- 


1  Story.         2Jour.  of  Cont.  Congress,  I,  p.  11. 


THE  CONTINENTAL  CONGRESS.  31 

mained    in    force    until   the    adoption   of   the   present 
Constitution,  in  1789. 

The  addresses  to  the  King,  to  the  people  of  Great  Brit 
ain,  to  the  inhabitants  of  the  colonies  they  represented, 
and  to  the  inhabitants  of  the  Province  of  Quebec,  were 
ail  drawn  up  with  great  ability,  and  were  spoken  of 
by  Lord  Chatham  in  terms  of  the  highest  admiration. 
After  recommending  that  another  Congress  should  be 
held  on  the  tenth  of  May  following,  provided  that  a 
redress  of  grievances  was  not  previously  obtained,  this 
Congress  adjourned  on  the  twenty-sixth  of  October.  That 
the  measures  adopted,  if  supported  by  the  American  peo 
ple,  would  produce  a  redress  of  grievances,  was  the  con 
viction  of  a  majority  of  the  members  of  the  Congress.1 

But  in  this  they  were  disappointed.  The  breach  be 
tween  England  and  the  colonies  became  wider.  Dele 
gates  were,  therefore,  appointed  to  meet  in  Phila 
delphia,  May  10th,  1775,  agreeably  to  the  recommen 
dation  of  the  Congress  of  1774.  Some  of  these  were 
chosen  by  conventions  of  the  people,  and  some  by  the 
colonial  legislatures,  as  in  the  previous  Congress.  With 
scarcely  an  exception,  the  delegates  of  1774  were  re- 
appointed  in  1775.  As  before,  twelve  colonies  were 
represented.  A  delegate  also  was  present  from  a  single 
parish  in  Georgia,  and  in  July  a  convention  was  held 
in  that  colony,  which  voted  to  accede  to  the  general 
association,  and  appointed  delegates  to  the  Congress. 

This  Second  Continental  Congress  continued  its  ses 
sions,  with  occasional  adjournments,  till  the  adoption 
of  the  present  Constitution,  in  1789.  Before  they  as 
sembled  on  the  tenth  of  May,  hostilities  had  been 
commenced  by  the  British  troops  under  General  Gage. 
One  of  the  first  items  of  business  brought  before  the 
body  was  a  letter  from  the  provincial  congress  of 
Massachusetts,  giving  an  account  of  the  battles  of 


1Pitkin,  I,  p.  301. 


32  CIVIL  GOVERNMENT. 

Lexington  and  Concord,  with  the  action  of  that  colony 
in  relation  thereto,  arid  requesting  the  direction  and 
assistance  of  the  Congress.  In  this  letter  is  the  follow 
ing  suggestion:  "With  the  greatest  deference,  we  beg 
leave  to  suggest,  that  a  powerful  army  on  the  side  of 
America  hath  been  considered  by  this  Congress  as  the 
only  means  left  to  stem  the  rapid  progress  of  a  tyranni 
cal  ministry." 1  The  Congress  at  once  resolved  itself 
into  a  committee  of  the  whole,  to  take  into  consider 
ation  the  state  of  America,  and  referred  this  letter  from 
Massachusetts  to  that  committee. 

Hostilities  having  already  commenced,  the  necessities 
of  the  case  compelled  this  Continental  Congress  to  take 
measures  to  put  the  country  into  a  state  of  defense,  and 
soon  they  assumed  a  virtual  control  over  the  military 
operations  of  all  the  colonies.  An  army  was  organized, 
and  on  the  fifteenth  of  June,  George  Washington,  a 
delegate  from  Virginia,  was  unanimously  elected  gen 
eral  of  all  the  forces.  His  commission  styled  him  the 
General  and  Commander-in-Chief  of  the  Army  of  the 
United  Colonies.  This  was  the  first  occasion  on  which 
the  style,  "The  United  Colonies,"  was  adopted;  it  con 
tinued  to  be  used  till  the  Declaration  of  Independence 
substituted  the  name,  "The  United  States." 

The  action  of  Congress  in  providing  for  raising  an 
army  and  appointing  a  commander-in-chief  was  in  ac 
cordance  with  the  general  expectation  of  the  colonies. 
Congress  thus  assumed  the  defense  of  the  country. 
They  created  a  continental  currency  by  issuing  bills 
of  credit.  They  established  a  treasury  department,  and 
organized  a  general  post-office,  Dr.  Benjamin  Franklin 
being  the  Postmaster-General.  In  answer  to  the  appli 
cations  from  various  colonies  for  advice  as  to  their  local 
governments,  Congress  recommended  that  such  forms  of 
government  be  established  as  would  best  secure  good 


.  Con.,  I,  p.  77. 


INDEPENDENCE   PROPOSED.  33 

order  during  the  continuance  of  the  dispute  between 
Great  Britain  and  the  colonies.  This  advice  mani 
festly  contemplated  the  establishment  of  provisional 
governments  only.  This  was  in  November  and  Decem 
ber,  1775. 

But  the  question  of  separation  began  to  be  discussed. 
On  the  twenty-second  of  April,  the  convention  of  North 
Carolina  empowered  their  delegates  in  Congress  "to 
concur  with  those  in  the  other  colonies  in  declaring  in 
dependency.  This,  it  is  believed,  was  the  first  direct 
public  act  of  any  colonial  assembly  or  convention  in 
favor  of  the  measure." *  On  May  15th,  the  convention 
of  Virginia  went  further,  and  unanimously  instructed 
their  delegates  in  Congress  "to  propose  to  that  respect 
able  body  to  declare  the  United  Colonies  free  and  inde 
pendent  States,  absolved  from  all  allegiance  or  depend 
ence  upon  the  crown  or  parliament  of  Great  Britain." 
In  accordance  with  these  instructions,  Richard  Henry 
Lee,  one  of  the  delegates  from  Virginia,  submitted  a 
resolution  declaring  "  that  the  United  Colonies  are  and 
ought  to  be  free  and  independent  States;  that  they  are 
absolved  from  all  allegiance  to  the  British  crown;  and 
that  all  political  connection  between  them  and  the  State 
of  Great  Britain  is,  and  ought  to  be.  totally  dissolved." 
This  was  on  the  seventh  of  June.  On  the  next  day 
it  was  debated  in  committee  of  the  whole. 

"No  question  of  greater  magnitude,"  says  Mr.  Pitkin, 
"was  ever  presented  to  the  deliberation  of  a  deliber 
ative  body,  or  debated  with  more  energy,  eloquence, 
and  ability."2 

The  resolution  was  discussed  again  in  committee  of 
the  whole  on  the  tenth,  and  adopted.  The  committee 
recommended  that  the  farther  consideration  of  the  reso 
lution  be  postponed  till  the  first  of  July,  but  mean 
while  that  a  committee  be  appointed  to  draft  a  decla- 


1  Pitkin,  I,  p.  360.        2  HM,  I    p.  362. 


34  CIVIL  GOVERNMENT. 

ration  of  independence.  This  committee  consisted  of 
Thomas  Jefferson  of  Virginia,  John  Adams  of  Massa 
chusetts,  Benjamin  Franklin  of  Pennsylvania,  Roger 
Sherman  of  Connecticut,  and  R.  R.  Livingston  of  New 
York. 

The  postponement  was  immediately  followed  by  pro 
ceedings  in  the  colonies,  most  of  which  either  in 
structed  or  authorized  their  delegates  in  Congress  to 
vote  for  the  resolution  of  independence;  and  on  the 
second  day  of  July  that  resolution,  which  had  before 
been  agreed  to  in  committee  of  the  whole,  was  adopted 
by  Congress  itself.  The  committee  who  had  been  in 
structed  to  prepare  the  declaration,  had  reported  on  the 
twenty-eighth  of  June,  and  on  the  fourth  day  of  July 
that  paper  was  adopted. 

After  citing  reasons  for  the  dissolution  of  the  po 
litical  bands  which  had  connected  them  with  Great 
Britain,  the  Declaration  concludes :  "  We,  therefore,  the 
Representatives  of  the  UNITED  STATES  OF  AMERICA,  in 
GENERAL  CONGRESS  assembled,  appealing  to  the  Supreme 
Judge  of  the  world  for  the  rectitude  of  our  intentions, 
do,  in  the  name,  and  by  authority  of  the  good  people 
of  these  colonies,  solemnly  publish  and  declare,  that 
these  United  Colonies  are,  and  of  right,  ought  to  be, 
FREE  and  INDEPENDENT  STATES." 

This  was  the  beginning  of  the  nation.  Whether  it 
could  maintain  its  independence,  thus  boldly  declared, 
was  to  be  decided  by  the  sword.  Should  the  people 
fail  in  the  bloody  struggle,  they  would  never  be  known 
as  a  nation  upon  the  page  of  history.  Should  they 
succeed,  their  national  existence  would  date  from  the 
fourth  of  July,  1776. 

This  Declaration  of  Independence  was  not  the  work 
of  States,  for  no  States  existed.  It  was  the  people  of  the 
thirteen  United  Colonies  who  had  through  their  repre 
sentatives  declared  themselves  absolved  from  their  alle 
giance,  to  Great  Britain.  The  nation  and  the  States 


INDEPENDENCE   DECLARED.  35 

were  born  on  the  same  day.  Hitherto,  there  had  been 
colonies  and  the  mother  country,  to  which  all  the 
colonists  acknowledged  allegiance.  Now,  the  sover 
eignty  was  no  longer  in  Great  Britain,  but  in  the 
people  themselves,  who  claimed  to  be  a  separate  polit 
ical  communitjr;  and  the  individual  colonies  had  be 
come  States.  From  that  day  the  nation  itself,  through 
Congress,  exercised  all  the  functions  of  government. 
There  was  a  real  government,  though  as  yet  no  writ 
ten  constitution;  and  the  relations  of  the  States  to  the 
general  government  were  in  substance  the  same  as 
they  are  now. 


CHAPTER    III. 

THE   ARTICLES   OP   CONFEDERATION — THEIR   FAILURE — THE  CONVENTION   TO 
FORM   A    CONSTITUTION. 

SOON  after  the  Declaration  of  Independence  was  made, 
a  committee,  previously  appointed,  reported  a  draft  of 
the  Articles  of  Confederation.  These  were  debated  from 
time  to  time,  and,  after  several  modifications,  were  finally 
agreed  to  by  Congress,  November  15,  1777.  They  were 
to  become  binding  when  ratified  by  all  the  States.  Ten 
States  ratified  them  in  July,  1778;  New  Jersey,  Novem 
ber  26,  and  Delaware,  February  22,  1779.  Maryland 
withheld  her  approval  till  March  1st,  1781. 

This  was  nearly  five  years  after  the  Declaration  of  Inde 
pendence.  During  this  time,  the  war  had  been  carried  on 
and  all  the  affairs  of  the  nation  had  been  conducted,  by 
Congress.  A  treaty  had  been  made  between  France  and 
the  United  States,  which  was  concluded  at  Paris,  Febru 
ary  6th,  1778,  and  ratified  by  Congress  May  4th  of  that 
year.  The  surrender  of  Cornwallis,  which  virtually 
closed  the  war,  took  place  on  the  17th  of  October,  1781, 
about  six  months  after  the  adoption  of  the  Articles  of 
Confederation.  The  successful  prosecution  of  the  War 
of  the  Revolution  could  not,  then,  have  been  owing  to  the 
influence  or  efficacy  of  these  Articles.  On  the  contrary, 
there  is  good  reason  to  believe  that,  had  these  Articles 
been  adopted  in  1776,  the  final  result  would  have  been 
very  different  from  what  it  was. 

These  Articles  were  as  erroneous  in  theory  as  they 
were  inefficient  in  practice.  The  Declaration  of  Inde 
pendence  was  made  in  the  name  of  the  people  of  the 

(36) 


THE    ARTICLES   OF   CONFEDERATION.  37 

United  States.  The  first  sentence  alludes  to  them  as 
:ione  people"  that  had  found  it  necessary  to  dissolve  the 
political  bands  which  had  connected  them  with  another 
people,  and  to  assume  among  the  powers  of  the  earth 
the  separate  and  equal  station  to  which  they  were 
entitled.  The  Constitution  speaks  the  same  language: 
"  We,  the  People  of  the  United  States,  do  ordain  and 
establish  this  Constitution  for  the  United  States  of 
America." 

But  the  Articles  of  Confederation  do  not  purport  to 
come  from  the  people.  They  were  the  work  of  the 
States.  The  instrument  is  styled  "  Articles  of  Confed 
eration  and  Perpetual  Union  between  the  States  of  New 
Hampshire,  Massachusetts  Bay,"  etc.  It  was  drawn  up 
and  adopted  by  Congress,  and  sent  to  the  States  for  rati 
fication.  Being  thus  the  work  of  the  States,  and  not  of 
the  people,  we  are  not  surprised  at  the  declaration  in  it, 
that  "each  State  retains  its  sovereignty,  freedom,  inde 
pendence,"  etc. 

The  Articles  contained  much  that  was  good,  and  some 
things  not  good;  and  much  was  omitted  which  was 
essential  to  a  Constitution.  It  provided  for  one  House 
of  Congress,  to  be  composed  of  delegates  appointed 
annually  by  the  several  States,  as  each  should  direct,  no 
State  to  be  represented  by  more  than  seven  or  less  than 
two,  and  no  person  being  capable  of  serving  as  a  delegate 
more  than  three  years  in  six.  Each  State  was  to  pay  its 
own  delegates,  and  could  recall  them  at  pleasure.  The 
voting  was  to  be  by  States. 

>,  Congress  was  invested  with  power  as  to  war  and 
peace,  treaties  and  alliances.  Congress  could  decide,  on 
appeal,  disputes  between  States,  could  regulate  the 
alloy  and  value  of  money,  had  charge  of  all  postal 
matters,  etc.,  etc. ;  but  no  important  action  could  be 
taken  without  a  vote  of  nine  States — two-thirds  of  the 
whole. 

No    Executive    Department    was    provided,    and    no 


38  CIVIL    GOVERNMENT. 

Judiciary.  Taxes  were  to  be  apportioned  among  the 
States,  but  Congress  had  no  authority  to  levy  them. 
Commerce  was  in  the  control  of  the  States.  Each  State 
could  lay  duties  and  imposts.  Congress  had  no  power 
to  enforce  its  own  measures. 

"  In  the  very  modes  of  its  operation  there  was  a  mon 
strous  defect,  which  distorted  the  whole  system  from 
the  true  proportions  and  character  of  a  government. 
It  gave  to  the  Confederation  the  power  of  contracting 
debts,  and  at  the  same  time  withheld  the  power  of  pay 
ing  them.  It  created  a  corporate  body,  formed  by  the 
Union  and  known  as  the  United  States,  and  gave  to  it 
the  faculty  of  borrowing  money  and  incurring  other 
obligations.  It  provided  the  mode  in  which  its  treas 
ury  should  be  supplied  for  the  reimbursement  of  the 
public  credit.  But  over  the  sources  of  that  supply.,  it 
gave  the  government  contracting  the  debt  no  power 
whatever.  Thirteen  independent  legislatures  granted 
or  withheld  the  means  which  were  to  enable  the  Gen 
eral  ^Government  to  pay  the  debts  which  the  general 
Constitution  had  enabled  it  to  contract,  according  to 
their  own  convenience  or  their  own  views  and  feelings 
as  to  the  purposes  for  which  those  debts  had  been 
incurred."1 

As  each  State  paid  its  own  delegates  in  Congress, 
the  smaller  the  number,  the  less  the  expense.  Often 
times  a  State  would  have  no  representative.  The 
Treaty  of  Peace,  signed  September  3d,  1783,  could  not  be 
ratified  till  January  14th,  for  want  of  representatives, 
and  then  there  were  but  twenty-three  members  present. 
In  April  of  that  year  there  were  present  twenty-five 
members  from  eleven  States,  nine  being  represented  by 
two  each.  Three  members,  therefore — one-eighth  of  the 
whole-  could  negative  any  important  measure. 

The  Treaty  of  Peace  was  made  by  the  United  States 


1Curtis's  History  of  the  Constitution,  I,  p.  181. 


THE  ARTICLES  OF  CONFEDERATION.  39 

with  Great  Britain,  but  Congress  could  not  enforce  its 
provisions.  Various  articles  were  constantly  violated 
by  the  States,  and  Congress  could  not  prevent  it. 
Great  Britain  declared  her  readiness  to  carry  the 
treaty  into  effect  when  the  United  States  would  do 
the  same. 

As  the  General  Government  could  not  carry  out  its 
own  treaties  with  foreign  powers  because  of  the  re 
fusal  of  the  States,  so  it  could  not  protect  a  State 
against  insurrection  or  rebellion.  The  outbreak  in 
Massachusetts  in  1786,  known  as  Shays's  Insurrection, 
which  embraced  a  fifth  of  the  inhabitants  in  several 
of  the  most  populous  counties,  caused  great  alarm 
through  the  country.  Armed  men  surrounded  the  court 
houses,  and  finally  the  insurgents  were  embodied  in 
arms  against  the  Government.  The  National  Govern 
ment  was  powerless  to  aid  the  State;  the  Articles 
of  Confederation  gave  Congress  no  authority  in  such 
a  case. 

The  weakness  of  the  league  of  States  was  made  abun 
dantly  manifest.  It  is  not  surprising  that  Washington 
should  write  as  he  did  to  a  member  of  Congress,  "You 
talk,  my  good  sir,  of  employing  influence  to  appease 
the  present  tumults  in  Massachusetts.  *  *  *  Influence 
is  not  government.  Let  us  have  a  government  by  which 
our  lives,  liberties,  and  properties  will  be  secured,  or 
let  us  know  the  worst  at  once." l 

The  weakness  of  the  Confederation,  especially  in  its 
relation  to  the  revenue,  had  been  early  seen  by  Wash 
ington.  He  saw  "that  to  form  a  new  constitution, 
which  would  give  consistency,  stability,  and  dignity  to 
the  Union,  was  the  great  problem  of  the  time."*  So, 
too,  Mr.  Hamilton,  without  doubt  the  ablest  statesman 
of  his  age,  was  convinced  before  the  Articles  of  Con 
federation  went  into  operation  that  they  could  never 


Curtis,  I,  p.  274.     2Ibid,  p.  202. 


40  CIVIL    GOVERNMENT. 

answer  the  purposes  of  government.  As  early  as  1780, 
he  sketched  the  outlines  of  a  system  of  government 
for  the  United  States,  embodying  almost  every  feature 
of  our  present  Constitution.1 

In  May,  1785,  Governor  Bowdoin  of  Massachusetts 
suggested  the  appointment  of  special  delegates  from 
the  States  to  define  the  powers  with  which  Congress 
ought  to  be  invested.  A  resolution  was  accordingly 
passed  by  the  legislature  of  Massachusetts,  declaring 
the  Articles  of  Confederation  inadequate,  and  calling  a 
convention  of  delegates  from  all  the  States.  But  the 
matter  was  not  brought  before  Congress  by  the  mem 
bers  of  that  body  from  Massachusetts. 

In  January,  1786,  the  legislature  of  Virginia  ap 
pointed  commissioners  to  meet  with  those  from  other 
States  to  consider  the  subject  of  trade,  with  reference 
to  a  uniform  system  of  commercial  regulations.  The 
meeting  was  held  in  September,  at  Annapolis,  Mary 
land.  Only  five  States  were  represented;  viz.,  New  York, 
New  Jersey,  Pennsylvania,  Delaware,  and  Virginia;  but 
great  results  followed  from  the  Convention.  The  com 
mittee  representing  so  few  States  did  not  enter  upon 
the  proper  business  of  the  Convention,  but  prepared  a 
report,  drawn  up  by  Mr.  Hamilton,  expressing  their 
unanimous  conviction  that  a  general  convention  should 
be  called  to  devise  such  provisions  as  might  render 
"the  Constitution  of  the  Federal  Government  adequate 
to  the  exigencies  of  the  Union." 

This  report,  though  addressed  to  the  States  repre 
sented,  was  also  sent  to  Congress  as  well  as  to  the 
other  States.  That  body,  on  the  twenty-first  of  Febru 
ary,  1787,  adopted  the  following  resolution : 

11  Resolved,  That,  in  the  opinion  of  Congress,  it  is  ex 
pedient  that,  on  the  second  Monday  in  May  next,  a 
Convention  of  delegates,  who  shall  have  been  appointed 


1  Curtis,  I,  p.  204. 


THE  CONVENTION  OF  1787.  41 

by  the  several  States,  be  held  at  Philadelphia,  for  the 
sole  and  express  purpose  of  revising  the  Articles  of 
Confederation,  and  reporting  to  Congress  and  the  several 
legislatures,  such  alterations  and  provisions  therein  as 
shall,  when  agreed  to  in  Congress  and  confirmed  by  the 
States,  render  the  Federal  Constitution  adequate  to  the 
exigencies  of  government,  and  the  preservation  of  the 
Union." 

In  accordance  with  this  recommendation,  all  the 
States  but  Rhode  Island  appointed  delegates,  and  the 
Convention  assembled  at  Philadelphia,  Monday,  May 
14th,  1787.  The  organization  was  not,  however,  ef 
fected,  for  want  of  a  quorum,  till  the  twenty-fifth, 
when  George  Washington  was  unanimously  elected 
President. 

This  Convention  contained  many  very  eminent  men. 
George  Washington,  Alexander  Hamilton,  James  Mad 
ison,  Benjamin  Franklin,  Rufus  King,  Roger  Sherman, 
James  Wilson,  Gouverneur  Morris,  and  Edmund  Ran 
dolph  would  have  been  distinguished  in  any  assembly. 
There  were  fifty-five  members  in  all,  most  of  whom 
were  illustrious  for  their  character  and  public  services. 
Dr.  Franklin  had  been  a  member  of  the  Convention  of 
1754.  Three  had  been  present  at  the  Congress  of  1765. 
Seven  had  been  members  of  the  First  Continental 
Congress.  Eight  were  among  the  signers  of  the  Dec 
laration  of  Independence.  Eighteen  were  at  the  same 
time  delegates  to  the  Continental  Congress;  and  of  the 
whole  number  there  were  only  twelve  who  had  not  sat 
at  some  time  in  that  body.1 

If  the  Convention  was  composed  of  extraordinary 
men,  it  had  before  it  extraordinary  work.  They  were 
to  form  a  complete  system  of  republican  government, 
with  no  example  for  their  guidance.  This  was  their 
real  work,  though  this  was  not  distinctly  present 


'Hildreth,  III,  p.  483. 
0.  G.  4. 


42  CIVIL  GOVERNMENT. 

to  all  of  them  at  first.  Some  were  thinking  only  of 
amending  the  Articles  of  Confederation;  but  Hamil 
ton  and  Madison  and  others  were  prepared  to  enter 
at  once  upon  the  construction  of  the  organic  law  for 
a  supreme  general  government,  without  regard,  either 
in  form  or  substance,  to  the  existing  Articles  of  Con 
federation.1 

Soon  after  the  organization  of  the  Convention,  Mr. 
Randolph  submitted  a  series  of  resolutions,  embodying 
his  views  of  the  government  desirable  to  be  established. 
They  were  also  the  views  of  Mr.  Madison.  Mr.  Pinck- 
ney,  of  South  Carolina,  submitted,  on  the  same  day,  a 
draft  of  a  Constitution.  All  these  were  referred  to  the 
Committee  of  the  Whole,  and  the  discussion  was  com 
menced.  The  first  resolution  adopted  in  Committee 
of  the  Whole  was  the  first  of  the  series  offered  by  Mr. 
Randolph,  somewhat  modified.  It  was  as  follows : 
"Resolved,  That  it  is  the  opinion  of  this  Committee 
that  a  national  government  ought  to  be  established, 
consisting  of  a  supreme  Legislative,  Judiciary,  and 
Executive." 

On  the  thirteenth  of  June,  the  Committee  reported 
a  series  of  resolutions  to  the  Convention.  On  the  fif 
teenth,  Mr.  Patterson  of  New  Jersey  offered  resolutions 
expressing  the  views  of  those  who  favored  amending 
the  Articles  of  Confederation,  and  opposed  the  forma 
tion  of  a  new  Constitution.  The  whole  subject  was 
then  again  referred  to  the  Committee  of  the  Whole,  and 
debated  till  the  nineteenth,  when  the  Committee  report 
ed  adversely  to  Mr.  Patterson's  plan,  and  submitted  the 
resolutions  formerly  reported.  These  resolutions  were 
debated  in  the  Convention  from  day  to  day,  some  great 
questions,  like  that  of  suffrage  in  the  Senate  and 
House  of  Representatives,  being  occasionally  referred 
to  a  special  committee.  On  the  twenty-third  of  July, 


Towle's  Analysis,  p.  31. 


THE  CONSTITUTION  ADOFfED.  43 

it  was  voted  to  appoint  a  Committee  of  Detail,  to  whom 
should  be  referred  the  proceedings  of  the  Convention, 
except  what  related  to  a  supreme  executive,  for  the 
purpose  of  reporting  a  Constitution  embodying  what 
had  been  agreed  upon.  This  Committee,  appointed  by 
ballot  the  next  day,  consisted  of  Messrs.  Rutledge  of 
South  Carolina,  Randolph  of  Virginia,  Gorham  of 
Maine,  Ellsworth  of  Connecticut,  and  Wilson  of  Penn 
sylvania.  The  propositions  of  Mr.  Patterson  and  of 
Mr.  Pinckney  were  also  referred  to  this  Committee.  On 
the  twenty-sixth,  after  some  instructions  to  the  Com 
mittee  of  Detail,  the  Convention  adjourned  to  the  sixth 
of  August. 

This  Committee  reported  at  the  time  appointed, 
and  their  draft  was  considered  by  the  Convention  till 
the  eighth  of  September,  when  a  committee  of  five 
was  appointed  to  revise  the  style  and  arrange  the 
Articles.  This  Committee  consisted  of  Messrs.  John 
son  of  Connecticut,  Hamilton  of  New  York,  Morris 
of  Pennsylvania,  Madison  of  Virginia,  and  King  of 
Massachusetts.  On  the  twelfth,  they  reported  the  Con 
stitution  ;  also  a  letter  to  Congress  to  accompany  the 
Constitution. 

The  discussions  were  continued  until  Saturday,  the 
fifteenth  of  September,  when  the  Constitution,  as 
amended,  was  agreed  to,  all  the  States  concurring.1 
It  was  then  ordered  to  be  engrossed,  and  on  the 
Monday  following  it  was  signed  by  the  members, 
after  striking  out  40,000  as  the  basis  for  representa 
tion  and  inserting  30,000.  The  form  of  signature 
was  this :  "  Done  in  Convention,  by  the  Unanimous 
consent  of  the  States  present,  the  seventeenth  day  of 
September,  in  the  year  of  our  Lord,  1787,  and  of  the 
Independence  of  the  United  States  of  America,  the 
twelfth." 


1  The  votes  had  been  by  States,  as  in  the  Continental  Congress, 


44  CIVIL    GOVERNMENT. 

Two  of  the  three  New  York  delegates  having  left 
the  Convention,  that  State  was  technically  not  present, 
though  Alexander  Hamilton's  signature  was  attached. 
Mr.  Gerry  of  Massachusetts  and  Messrs.  Randolph  and 
Mason  of  Virginia  did  not  sign  the  Constitution, 
though  it  was  signed  by  a  majority  of  the  delegates 
from  each  of  those  States. 


CHAPTER    IV. 

THE    CONSTITUTION    OF  THE    UNITED    STATES. 

We,  the  People  of  the  United  States,  in  order  to  form  a 
more  perfect  union,  establish  justice,  insure  domestic  tran 
quillity,  provide  for  the  common  defense,  promote  the  general 
welfare,  and  secure  the  blessings  of  liberty  to  ourselves  and 
our  posterity,  do  ordain  and  establish  this  Constitution  for 
the  United  States  of  America. 

This  first  sentence  of  the  Constitution  is  often  called  a 
"  preamble."  But  that  term  was  not  applied  to  it  by 
those  who  framed  the  Constitution,  and  is  not  found  in 
the  original  manuscript.  It  is  not  a  preamble,  either  in 
form  or  substance,  but  is  the  enacting  clause — an  inte 
gral  part  of  the  Constitution  itself.  A  preamble  gives 
reasons  why  a  resolution  should  be  adopted  or  an  enact 
ment  made,  but  it  is  no  part  of  the  resolution  or  enact 
ment.  The  enacting  clause,  on  the  contrary,  is  manda 
tory.  No  other  part  of  a  statute  is  more  important. 
Such  is  the  introductory  sentence  of  the  Constitution. 
"  We,  the  People  of  the  United  States,"  for  certain  pur 
poses,  "do  ordain  and  establish  this  Constitution  for  the 
United  States  of  America."  "The  enacting  clause  is 
perfectly  authoritative  in  its  source, — the  people;  per 
emptory  in  its  action, —  ordain  and  establish;  definite 
and  exact  in  its  subject, — this  Constitution;  and  dis 
tinct,  broad,  arid  extensive  in  its  purposes  and  ends, 
embracing  the  liberty,  safety,  and  welfare  of  the  whole 
Union,  and  all  its  people."1 


1  Farrar's  Manual  of  the  Constitution,  p.  88. 

(45) 


46  THE  CONSTITUTION. 

We  have  here  (1)  the  authority — We,  the  People  of  the 
United  States;  (2)  the  ends  for  which  the  Constitution  is 
made,  in  six  particulars;  (3)  the  explicit  ordaining  of 
this  Constitution,  including  this  introductory  clause ;  (4) 
the  nation  for  whom  it  is  made, — "  the  United  States  of 
America." 

The  Constitution  was  ordained  by  the  people  of  the 
United  States  as  a  nation.  The  language  presupposes 
the  unity,  the  nationality,  and  the  sovereignty  of  the 
people.  The  nation  began  to  exist  on  the  fourth  of  July, 
1776.  The  people  then  cast  off  their  allegiance  to  Great 
Britain,  and  became  a  separate  nation,  possessing  the 
rightful  sovereignty  of  the  country.  They  became 
united  in  a  national  corporate  capacity,  as  one  people, 
and  took  for  their  national  designation  the  name,  the 
"United  States  of  America."  From  that  day  to  the  pres 
ent,  they  have  been  known  to  the  world  by  this  name. 
Wherever  in  the  Constitution  these  words  occur,  or  the 
briefer  form,  the  "United  States,"  they  signify  the  nation 
as  a  whole  ;  wherever  the  word  "States"  occurs  it  signi 
fies  the  States  considered  separately,  or  as  distinguished 
from  the  nation. 

The  purposes  for  which  the  Constitution  was  formed 
are  admirably  stated :  "  To  form  a  more  perfect  union, 
establish  justice,  insure  domestic  tranquillity,  provide 
for  the  common  defense,  promote  the  general  welfare, 
and  secure  the  blessings  of  liberty  to  ourselves  and  our 
posterity." 

The  Congress  of  the  Confederation  called  the  Constitu 
tional  Convention  for  the  purpose  of  forming  "a  firm 
national  government  *  *  adequate  to  the  exigencies 
of  government  and  the  preservation  of  the  Union."  The 
Union  under  the  Confederation  was  imperfect  and  unsat 
isfactory,  and  the  framers  of  the  Constitution  determined 
to  submit  to  the  people  an  instrument  which  should  be 
more  efficient  than  the  Articles  of  Confederation.  It  was 
a  union  of  the  people  of  all  parts  of  the  countty,  as  con- 


THE   CONSTITUTION.  47 

stituting  one  nation,  which  they  wished  to  secure, 
instead  of  a  mere  league  of  States.  Under  the  Articles  of 
Confederation,  there  was  no  distinct  judicial  depart 
ment,  as  there  was  no  executive,  while  the  new  Consti 
tution  provided  for  both.  The  domestic  tranquillity  had 
been  greatly  interfered  with  because  of  the  power  given 
to  the  individual  States;  the  central  government  having 
little  more  than  the  power  to  recommend.  The  national 
government  would  insure  this  domestic  tranquillity. 
The  words  "common  defense1'  and  "general  welfare" 
were  introduced  near  the  close  of  the  Convention,  but 
they  met  with  no  opposition.  No  language  could  be 
more  comprehensive  than  this,  "to  promote  the  general 
welfare." 

For  these  various  purposes  the  people  of  the  United 
States  ordain  this  Constitution  for  themselves.  It  is 
the  organic,  fundamental  law  for  the  whole  people  of  the 
country  whose  corporate  name  is  the  United  States  of 
America.  The  nation,  as  such,  establishes  this  Consti 
tution,  making  it  sufficient  for  all  the  exigencies  of  gov 
ernment.  As  the  organic  law  of  the  nation,  it  is  every 
where  supreme.  Subordinate  governments  may  continue 
and  new  ones  be  established,  but  always  in  conformity 
with  this. 

The  Constitution  contains  seven  articles,  which  are 
subdivided  into  sections.  In  the  original  there  are 
no  headings  to  the  articles.  Both  articles  and  sections 
are  numbered. 

Article  1st  relates  to  the  Legislative  power. 

Article  2d,  to  the  Executive  power. 

Article  3d,  to  the  Judicial  power. 

Article  4th,  to  various  subjects. 

Article  5th,  to  the  mode  of  amending  the  Constitution. 

Article  6th,  to  the  validity  of  debts  contracted  before 
the  adoption  of  the  Constitution,  and  to  its  supremacy. 

Article  7th.  to  the  mode  of  its  ratification. 

Besides  these  seven  articles,  fifteen  amendments  have 


48  THE  CONSTITUTION.  1. 1.  1. 

been  made  to  the  Constitution,  which  are  as  binding  as 
the  original  articles. 

ARTICLE    I. 
THE     LEGISLATIVE     DEPARTMENT. 

Sec.  1. — All  legislative  powers  herein  granted  shall  be 
vested  in  a  Congress  of  the  United  States,  which  shall  con 
sist  of  a  Senate  and  House  of  Representatives. 

Under  the  Confederation,  the  whole  governmental 
authority  was  vested  in  Congress.  There  was  no  Execu 
tive  department,  and  no  Judicial.  The  first  resolution 
adopted  in  the  Constitutional  Convention  was,  that  a 
national  government  ought  to  be  formed,  consisting  of 
supreme  Legislative,  Executive,  and  Judicial  depart 
ments.  Most  legislative  bodies  have  two  houses.  This 
is  true  of  all  the  existing  State  governments,  and  was 
true  of  all  at  the  time  the  Constitution  -was  framed, 
except  Pennsylvania  and  Georgia,  which  had  but  one 
each.  The  Continental  Congress  had  but  one  house. 
While  there  is  a  general  distribution  of  powers  among 
the  three  great  departments  of  the  government,  the 
exercise  of  these  powers  is  not  absolutely  exclusive. 
We  shall  see  that  the  President  has  a  qualified  veto  on 
legislation,  and  that  the  Senate  sometimes  acts  as  a 
court,  and  sometimes  transacts  executive  business. 

Sec.  2,  Clause  1. —  The  House  of  Representatives  shall 
be  composed  of  members  chosen  every  second  year  by  the 
people  of  the  several  States ;  and  the  electors  in  each  State 
shall  have  the  qualifications  requisite  for  electors  of  the  most 
numerous  branch  of  the  State  legislature. 

Under  the  Confederation,  the  members  of  Congress 
were  chosen  annually,  and  as  the  legislature  of  each 
State  should  direct.  They  could  also  be  recalled.  The 
Constitution  makes  the  term  of  service  of  the  Repre 
sentatives  two  years,  and  requires  that  the  election  shall 
be  by  "the  people."  In  England,  a  member  of  the 
House  of  Commons  is  elected  for  seven  years. 


1.  II.  2.  THE  HOUSE  OF  REPRESENTATIVES.  49 

Those  who  vote  for  Representatives  to  Congress  must 
have  the  qualifications  requisite  to  enable  them  to  vote 
for  members  of  the  lower  house  of  the  State  legislature, 
but  it  is  not  clear  by  whom  these  qualifications  are  to 
be  prescribed.  The  common  opinion  has  been  that  the 
State  prescribes  them.  The  Constitution  says  simply 
that  the  qualifications  must  be  the  same ;  so  that  who 
ever  can  vote  for  the  State  representative  can  vote  for 
the  National  one  also,  and  vice  versa.  The  Constitution 
does  say  that  Representatives  to  Congress  shall  be  elected 
by  the  people;  thus  virtually  saying  that  the  members  of 
the  most  numerous  branch  of  the  State  legislature  shall 
also  be  elected  by  the  people. 

Clause  2. — No  person  shall  be  a  Representative  who 
shall  not  have  attained  to  the  age  of  twenty-jive  years,  and 
been  seven  years  a  citizen  of  the  United  States,  and  who 
shall  not,  when  elected,  be  an  inhabitant  of  that  State  in 
which  he  shall  be  chosen. 

The  qualifications  of  a  Representative  relate  to  age, 
citizenship,  and  inhabitancy;  he  must  be  twenty-five 
years  old,  a  citizen  of  the  United  States  for  seven  years, 
and  an  inhabitant  of  the  State  where  he  is  elected.  It 
has  been  decided  that  the  States  can  not  prescribe  addi 
tional  qualifications. 

According  to  the  Articles  of  Confederation,  no  person 
could  be  a  Representative  in  Congress  more  than  three 
years  in  six ;  and  each  State  prescribed  the  qualifications 
of  its  own  Representatives.  In  the  British  Parliament 
the  required  age  is  twenty-one  years ;  and  the  same  age 
is  required  in  the 'different  States  of  our  Union.  The 
Representative  must  have  been  a  citizen  of  the  United 
States  for  seven  years.  The  United  States  is  spoken  of 
as  one  country,  a  nation.  It  would  be  nonsense  to  say  a 
Representative  must  have  been  seven  years  a  citizen  of 
the  thirteen  States.  Yet  a  United  States  Senator,  in  an 
argument  for  secession,  once  said,  on  the  floor  of  the  Sen- 
C.  G.  5. 


50  THE  CONSTITUTION.  I.  II.  3. 

ate,  that  he  pitied  the  stupidity  of  any  one  who  supposed 
there  was  or  could  be  a  citizen  of  the  United  States  I 
There  was  stupidity  somewhere  plainly  enough,  and 
with  the  Constitution  before  us  it  is  not  difficult  to  see 
where  it  belonged. 

The  Representative  must  be  an  inhabitant  of  the  State 
in  which  he  is  chosen,  but  not  necessarily  of  the  district. 
In  England,  members  of  Parliament  often  represent 
boroughs  and  cities  other  than  those  in  which  they  live. 
No  such  case  has  occurred  in  this  country,  however. 
The  Constitution  does  not  require  the  Representative 
to  be  a  voter.  If  a  State  should  como  into  the  Union 
through  conquest  or  purchase,  the  inhabitants  becom 
ing  citizens  thereby,  the  seven  yearsr  citizenship  would 
not  be  insisted  on. 

Clause  3.— Representatives  and  direct  taxes  shall  be 
apportioned  among  the  several  States  which  may  be  in 
cluded  within  this  Union,  according  to  their  respective 
numbers,  which  shall  be  determined  by  adding  to  the  whole 
number  of  free  persons,  including  those  bound  to  service 
for  a  term  of  years,  and  excluding  Indians  not  taxed, 
three-fifths  of  all  other  persons.  The  actual  enumeration 
shall  be  made  within  three  years  after  the  first  meeting 
of  the  Congress  of  the  United  States,  and  within  every 
subsequent  term  of  ten  years,  in  such  manner  as  thei 
shall  by  law  direct.  The  number  of  Representatives  shal 
not  exceed  one  for  every  thirty  thousand,  but  each  Statt 
shall  have  at  least  one  Representative;  and  until  suct 
enumeration  shall  be  made,  the  State  of  New  Hampshire 
shall  be  entitled  to  choose  three;  Massachusetts,  eight; 
Rhode  Island  and  Providence  Plantations,  one;  Connecti 
cut,  five  ;  New  York,  six;  New  Jersey,  four;  Pennsyl 
vania,  eight;  Delaware,  one;  Maryland,  six;  Virginia, 
ten;  North  Carolina,  five;  South  Carolina,  five;  an< , 
Georgia,  three. 


1.  II.  3.  THE  HOUSE  OF  REPRESENTATIVES.  f>l 

When  the  Continental  Congress  commenced  its  ses 
sions,  September  5th,  1774,  the  following  resolution 
was  adopted : 

"Resolved,  That  in  determining  questions  in  this  Con 
gress,  each  colony  or  province  shall  have  one  vote :  the 
Congress  not  being  possessed  of,  or  at  present  able  to 
procure,  proper  materials  for  ascertaining  the  impor 
tance  of  each  colony." 

"As  if  foreseeing  the  time  when  population  would 
become  of  necessity  the  basis  of  congressional  power, 
they  inserted,  in  the  resolve  determining  that  each 
colony  should  have  one  vote,  a  caution  that  would 
prevent  its  being  drawn  into  precedent."1 

The  Articles  of  Confederation  followed  the  same 
rule,  and  thus  this  method  of  voting  prevailed  till 
the  Constitution  went  into  operation  in  1789.  When 
the  Convention  decided  to  form  two  legislative  bodies, 
the  question  of  voting  came  up.  Some  were  in  favor 
of  an  equal  representation  by  States  in  each  branch, 
while  others  favored  a  popular  basis,  and  a  propor 
tionate  representation  in  each  House.  In  general,  the 
larger  States  wished  the  representation  to  be  in  pro 
portion  to  the  importance  of  the  State,  while  the 
smaller  States  favored  an  equality,  as  in  the  Conti 
nental  Congress. 

It  was  first  decided  that  in  the  House  of  Represent 
atives  suffrage  should  not  be  like  that  under  the 
Confederation,  but  according  to  some  equitable  ratio 
of  representation.  The  question  then  arose  as  to  the 
basis  of  that  ratio.  Should  the  different  States  send 
Representatives  in  proportion  to  their  population  or 
their  wealth?  And  if  according  to  population,  who 
were  the  people?  Should  the  number  of  representa 
tives  be  according  to  the  number  of  voters,  or  as  the 
white  population,  or  as  the  free  population,  or  as  the 


1  Curtis,  I,  p.  17. 


52  THE  CONSTITUTION.  1.  II.  3. 

whole?  It  was  decided  that  the  representation  from 
the  States  should  be  "according  to  their  respective 
numbers,"  that  is,  as  the  whole  population,  but  that 
only  three-fifths  of  the  slaves  should  be  counted. 

According  to  the  Articles  of  Confederation,  the  votes 
were  by  States  —  each  State,  whether  large  or  small, 
having  one  vote.  But  the  quotas  for  the  support  of 
the  General  Government  were  as  the  values  of  real 
estate  in  the  several  States.  In  1783,  a  proposition 
was  made  to  alter  that  provision  so  that  each  State 
should  pay  "in  proportion  to  the  whole  number  of  free 
inhabitants,  and  three-fifths  of  the  number  of  all  other 
inhabitants  of  every  sex  and  condition,  except  Indians 
not  paying  taxes  in  any  State."1  The  Convention  fol 
lowed,  both  as  to  representation  and  direct  taxes,  the 
rule  approved  by  the  majority  of  the  Continental  Con 
gress  in  1783  for  the  payment  of  taxes,  and  this  was 
the  origin  of  the  three-fifths  rule. 

The  adoption  of  this  rule  was  favorable  to  the  Slave 
States  as  it  increased  the  number  of  their  Represent 
atives;  it  was  unfavorable  as  it  increased  their  pro 
portion  of  direct  taxes.  The  advantage  was  greater 
than  the  disadvantage,  however,  as  they  enjoyed  the 
increased  number  of  Representatives  continually,  while 
direct  taxes  have  been  levied  but  five  times  since  the 
adoption  of  the  Constitution. 

Slavery  having  been  abolished  in  1865,  by  an  amend 
ment  to  the  Constitution,  all  the  colored  population 
must  be  counted  in  determining  the  number  of  Repre 
sentatives  from  a  State.  If  this  class  of  the  popula 
tion  could  not  vote,  the  Southern  States  would  have 
nearly  twice  as  many  Representatives,  in  proportion 
to  the  number  of  voters;  as  the  Northern  States.  Thus, 
by  the  census  of  1860,  Pennsylvania  had  2.893,2(,!6 
white  inhabitants,  and  twenty-four  Representatives. 


Jour.  Cont.  Congress,  VIII,  p.   123. 


1.  II.  3.  THE  HOUSE  OF  REPRESENTATIVES.  53 

North  Carolina,  South  Carolina,  Georgia,  Alabama, 
Florida,  Mississippi,  and  Louisiana  had  2,829,785  white 
inhabitants,  and  thirty-nine  Representatives.  If  the 
white  inhabitants  and  three-fifths  of  the  blacks  gave 
them  thirty-nine  Representatives,  these  States  would 
have  fifty  Representatives,  counting  all  the  blacks; 
that  is,  with  a  less  voting  population  than  Pennsyl 
vania  they  would  have  more  than  twice  as  many 
Representatives.  To  remedy  this  inequality,  the  Four 
teenth  Amendment  provides  that  if  the  right  to  vote 
is  denied  to  any  class  of  citizens,  the  basis  of  repre 
sentation  shall  be  reduced  in  proportion. 

The  basis  of  representation  was  reported  at  forty 
thousand  by  the  Committee,  and  so  remained  till  the 
last  day  of  the  Convention,  when  it  was  changed  to 
thirty  thousand,  General  Washington  himself  advoca 
ting  the  change.  This  is  said  to  have  been  the  only 
occasion  on  which  he  entered  into  the  discussions  of 
the  Convention. 

A  question  arose  early  in  Washington's  administra 
tion  as  to  the  construction  of  this  clause.  Should  the 
number  of  Representatives  be  determined  by  dividing 
the  whole  population  of  the  United  States  by  the  num 
ber  taken  as  the  basis  of  representation,  or  by  divid 
ing  the  population  of  the  respective  States  by  that  number, 
and  taking  the  sum  of  the  quotients.  The  former 
method  would  give  the  largest  number  of  Representa 
tives,  and  was  adopted  by  Congress  in  the  bill  first 
passed.  But  the  bill  was  returned  by  President  Wash 
ington,  as  conflicting  with  the  language  of  the  Con 
stitution.  Congress  yielded  to  the  judgment  of  the 
President ;  and  the  method  then  adopted,  of  dividing 
the  population  of  each  State  by  the  basis  of  represen 
tation,  continued  till  1842,  when  an  act  of  Congress 
provided  that  there  should  be  one  Representative  for 
every  70,680,  and  for  a  fraction  greater  than  one-half 
of  this  number.  By  act  of  May  23d,  1850,  it  was  pro- 


54  THE  CONSTITUTION.  1.  II.  3. 

vided  that  the  whole  population  of  the  United  States 
should  be  divided  by  the  number  233,  and  the  quotient 
be  the  ratio.  With  this  ratio  the  population  of  each 
State  is  divided,  the  quotient  being  the  number  of  its 
Representatives.  The  number  of  Representatives  nec 
essary  to  make  233  are  given  to  the  States  having  the 
largest  fractions. 

The  first  enumeration  of  the  people  was  made  in 
1790,  the  second  in  1800,  and  so  on.  After  the  census 
returns  have  been  made,  Congress  provides  by  law  for 
the  representation,  to  take  effect  March  4th  of  the 
third  year  after.  The  Constitution  provided  for  65 
members  for  the  First  Congress.  In  March,  1793,  there 
were  105;  in  1803,  141;  in  1813,  181;  in  1823,  212; 
in  1833,  240;  in  1843,  223.  In  1850,  as  stated  above, 
the  number  was  fixed  at  233,  and  the  Secretary  of  the 
Interior  was  directed  to  ascertain  the  number  to  which 
each  State  was  entitled,  and  make  certificate  of  the 
same  to  the  Governors.  In  all  the  cases  previous  to 
this  time  the  specific  number  for  each  State  had  been 
given  in  the  act  of  Congress.  Before  an  election  had 
been  held  under  the  act  of  1850,  Congress  changed  the 
number  from  233  to  234,  to  remain  till  the  next  appor 
tionment.  The  additional  one  was  given  to  California. 
In  1862  the  number  for  the  next  ten  years  was  fixed  at 
241,  the  eight  additional  ones  (to  233)  being  appor 
tioned  to  Pennsylvania,  Ohio,  Kentucky,  Illinois,  Iowa, 
Minnesota,  Vermont,  and  Rhode  Island. 

The  number  of  Representatives  for  the  different 
decades,  and  the  number  of  inhabitants  for  a  Represent 
ative  are  as  follows : 

Period.  No.  of  Members.          Katio  of  Population. 

1789-1793  65  

1793-1803  105  33,000 

1803-1813  141  33,000 

1813-1823  181  35,000 

1823-1833  212  40,000 

1833-1843  240  47,700 


1.  II.  4.  THE  HOUSE  OF  REPRESENTATIVES.  55 

Period.  No.  of  Members.          Ratio  of  Population. 

1843-1853  223  70,680 

1853-1863  234  1:3,500 

1863-1873  241  127,(-)41 

1873-1883  292  130,533 

The  actual  number  of  Representatives  has  usually  been 
greater  than  that  here  given,  owing  to  the  admission  of 
new  States.  Thus  the  Forty-second  Congress  (1871- 
1873)  had  243,  instead  of  241;  Nevada  having  been 
admitted  in  1864,  and  Nebraska  in  1867. 

Each  organized  Territory  is  allowed  by  law  to  send  one 
delegate  to  Congress,  who  may  participate  in  the  discus 
sions,  but  can  not  vote.  In  the  Forty-second  Congress 
there  were  nine  delegates  from  the  Territories,  and  one 
from  the  District  of  Columbia. 

Clause  4. —  When  vacancies  happen  in  the  representation 
from  any  State,  the  executive  authority  thereof  shall  issue 
writs  of  election  to  fill  such  vacancies. 

Vacancies  may  be  created  by  death,  resignation,  re 
moval,  or  accepting  incompatible  offices.  All  these  cases 
have  occurred.  The  person  thus  elected  to  fill  a  vacancy 
serves  only  the  remainder  of  the  term. 

Clause  5. —  The  House  of  Representatives  shall  clioose 
their  Speaker  and  other  officers,  and  shall  have  tlie  sole 
power  of  impeachment. 

The  Speaker  is  the  presiding  officer  of  the  House. 
The  presiding  officer  of  the  Continental  Congress  was 
styled  President.  Where  a  legislature  is  composed  of  two 
houses,  the  presiding  officer  of  the  upper  house  is  usually 
called  President,  and  of  the  lower  house.  Speaker.  The 
British  House  of  Commons  choose  their  Speaker,  but  the 
approbation  of  the  Crown  is  necessary. 

The  other  officers  of  the  House  of  Representatives  are 
a  Clerk,  Sergeant-at-Arms,  Door-keeper,  Postmaster,  and 
Chaplain. 

The  office  of  Clerk  is  one  of  great  importance,  and  is 
usually  filled  by  an  ex-member  of  Congress.  The  Clerk 


56  THE  CONSTITUTION.  1.  III.  1. 

presides  at  the  organization  of  the  subsequent  Congress. 
The  Congress  that  convened  December  3d,  1855,  did  not 
succeed  in  electing  a  Speaker  till  the  second  of  February, 
1856,  having  balloted  133  times.  Mr.  N.  P.  Banks  was 
the  successful  candidate.  In  the  case  of  the  Thirty-sixth 
Congress,  in  the  winter  of  1859-60,  there  was  a  delay 
nearly  as  long.  Mr.  William  Pennington  was  elected. 
A  list  of  the  Speakers  will  be  found  in  Chapter  VII. 

The  Constitution  gives  to  the  House  of  Representa 
tives  the  sole  power  of  impeachment,  and  to  the  Senate 
the  sole  power  to  try  the  party  impeached.  As  a  citizen 
can  not  be  tried  before  a  court  until  he  lias  been  indicted 
by  a  grand  jury,  so  an  officer  of  the  Government  can  not 
be  tried  by  the  Senate  until  articles  of  impeachment 
liave  been  brought  against  him  by  the  House  of  Repre 
sentatives. 

The  method  of  proceeding,  so  far  as  the  House  is  con 
cerned,  is  this: 

A  committee  is  appointed  to  inquire  into  the  conduct 
of  the  officer  supposed  to  have  been  guilty  of  acts  requir 
ing  impeachment.  If  they  report  in  favor  of  impeach 
ment,  the  question  is  acted  on  by  the  House.  Should  the 
House  determine  on  impeachment,  articles  are  prepared, 
embodying  the  charges,  on  each  of  which  action  is  taken. 
A  committee  is  then  appointed  to  prosecute  the  impeach 
ment  before  the  Senate.  The  method  of  trial  and  a  list 
of  the  persons  impeached  will  be  given  in  a  subsequent 
part  of  the  work. 

Sec.  3,  Clause  I.— The  Senate  of  the  United  States  shall 
be  composed  of  two  Senators  from  each  State,  chosen  by  the 
legislature  thereof,  for  six  years;  and  each  Senator  shall 
have  one  vote. 

In  the  Convention  that  framed  the  Constitution  there 
was  great  difference  of  opinion  as  to  the  mode  of  electing 
Senators,  as  to  their  term  of  service,  and  as  to  the  rule 
of  suffrage.  Some  were  in  favor  of  a  nomination  by  the 
State  legislatures  and  an  election  by  the  United  States 


1.  III.  1.  THE  SENATE.  57 

House  of  Representatives;  others  would  have  the  Presi 
dent  appoint  from  those  nominated  by  the  State  legisla 
tures;  others  would  have  them  chosen  by  the  House  of 
Representatives;  and  others  still  proposed  an  election  by 
the  people. 

As  to  the  term  of  office,  some  advocated  a  life  tenure, 
or  during  good  behavior;  some,  a  term  of  nine  years; 
others,  seven;  others,  six;  and  others,  four. 

The  question  of  voting  was  the  most  difficult.  As 
in  the  Continental  Congress  the  States  were  on  an 
equality  as  to  their  votes,  the  smaller  States  wished 
the  same  rule  to  hold  under  the  Constitution;  while 
the  larger  States  claimed  that  an  equality  of  votes  in 
either  House  would  be  unjust.  The  smaller  States  fin 
ally  conceded  that  in  the  House  of  Representatives 
the  number  of  members  should  be  in  proportion  to 
population;  but  they  insisted  that  in  the  Senate  the 
States  should  be  equal.  But  the  larger  States  were 
tenacious  as  to  the  Senate  as  well  as  to  the  House; 
and  the  Committee  of  the  Whole  reported,  "That  the 
right  of  suffrage  in  the  second  branch  of  the  national 
legislature  ought  to  be  according  to  the  rule  estab 
lished  for  the  first."  This  report  was  adopted  by  the 
Convention ;  but  the  matter  was  subsequently  re 
ferred  to  a  committee  of  one  from  each  State,  who 
reported  the  rule  as  it  now  stands.  The  final  vote 
was:  Affirmative  —  Connecticut,  New  Jersey,  Delaware, 
Maryland,  North  Carolina  —  5  ;  Negative  —  Pennsyl 
vania,  Virginia,  South  Carolina,  Georgia — 4.  Massa 
chusetts  divided.  "  So  that  this  greatest  and  most  dif 
ficult  of  all  the  important  questions  which  the  Con 
vention  was  called  upon  to  solve,  was  carried  by  less 
than  a  majority  of  the  States  present,  and  by  the 
concurrence  of  less  than  one-third  of  the  represented 
population." 1 


'Towle,  p.  69. 


58  THE   CONSTITUTION.  1.  III.  1. 

Mr.  Madison  strongly  opposed  the  principle  finally 
adopted.  In  his  letter  to  Mr.  Sparks,  he  said  the 
Gordian  knot  of  the  Convention  was  the  question  be 
tween  the  larger  and  smaller  States  as  to  the  rule  of 
voting  in  the  Senate;  the  latter  claiming,  the  former 
opposing,  the  rule  of  equality.1 

By  the  Articles  of  Confederation  each  State  might 
send  not  more  than  seven  delegates  to  Congress,  nor 
less  than  two.  They  were  elected  annually,  but  no 
one  could  sit  more  than  three  years  in  six.  The 
States  could  recall  their  delegates  at  any  time.  Un 
der  the  Constitution,  we  see  that  each  State  can  send 
two  Senators,  and  as  many  Representatives  as  her 
population  entitles  her  to;  that  there  is  nothing  to 
prevent  a  Senator  or  Representative  from  being  re 
turned  as,  often  as  his  constituents  desire;  and  that, 
when  a  Senator  or  Representative  has  been  elected, 
the  State  has  no  power  to  recall  him.2 

Though  all  the  States  have  the  same  number  of 
Senators,  and  each  Senator  has  one  vote,  this  is  not 
the  same  as  voting  by  States,  as  was  done  in  the  Con 
tinental  Congress.  If  both  the  Senators  of  a  State  are 
present,  and  vote  on  opposite  sides  of  a  question,  their 
votes  neutralize  each  other,  as  under  the  Confedera 
tion.  But  if  only  one  of  two  delegates  from  a  State 
was  present  in  the  Continental  Congress,  his  vote 
could  not  be  counted;  under  the  present  Constitution 
the  vote  of  one  is  counted  whether  his  colleague  is 
present  or  not. 

The  Constitution  does  not  prescribe  the  precise 
method  in  which  the  legislature  of  a  State  shall 
choose  the  Senators,  whether  by  joint  ballot  or  by 


'Elliot,  I,  p.  508. 

2  Thomas  H.  Benton  was  thirty  years  a  Senator  from  Missouri. 
Charl«  a  S. miner  and  Henry  Wilson  were  elected  four  times  each 
'-oni  M-assnohnaetts. 


I.  III.  2.  THE  SENATE.  59 

concurrent  resolution.  It  is  not  properly  an  act  of 
legislation,  and  the  Governor  of  a  State  has  no  par 
ticipation  in  it,  as,  in  some  States,  he  has  in  ordinary 
legislation.1 

On  the  25th  of  July,  1866,  Congress  passed  an  "  Act 
to  regulate  the  times  and  manner  of  holding  elections 
for  Senators  in  Congress."  It  provides,  that  the  legis 
lature  of  each  State,  which  shall  be  chosen  next  pre 
ceding  the  expiration  of  the  time  for  which  any  Sen 
ator  was  elected,  shall,  on  the  second  Tuesday  after 
the  meeting  and  organization  thereof,  proceed  to  elect 
a  Senator  as  follows  : 

Each  House  shall  name  a  person  for  Senator  by  a 
viva  voce  vote;  the  next  day  at  noon  the  two  Houses 
shall  meet  in  joint  assembly,  and  if  the  same  person 
shall  have  received  a  majority  of  all  the  votes  in  each 
House  he  shall  be  declared  duly  elected. 

If  no  person  has  received  such  majorities,  the  joint 
assembly  shall  choose  by  a  viva  voce  vote ;  and  whoever 
shall  receive  a  majority  of  all  the  votes  cast,  a  ma 
jority  of  each  House  being  present,  shall  be  declared 
elected. 

If  no  person  is  elected  the  first  day,  the  joint  assem 
bly  shall  convene  each  day  at  twelve  o'clock  and  take 
at  least  one  vote  each  day  during  the  session,  or  until 
a  Senator  is  elected. 

If  a  vacancy  exists  when  the  legislature  convenes, 
the  same  steps  shall  be  taken ;  and  if  a  vacancy  occurs 
during  the  session  of  the  legislature,  they  shall  proceed 
to  elect  on  the  second  Tuesday  after  they  have  had 
notice  of  the  vacancy. 

Clause  2. — Immediately  after  they  shall  be  assembled  in 
consequence  of  the  first  election,  they  shall  be  divided  as 


'  New  York  had  no  Senators  for  the  first  few  months  of  the  First 
Congress,  because  of  disagreement  between  the  two  branches  of 
the  legislature,  For  the  same  reasons  she  had  no  Electors. 


60  THE  CONSTITUTION.  1.  III.  2. 

equally  as  may  be  into  three  classes.  The  seats  of  the  Sen 
ators  of  the  first  class  shall  be  vacated  at  the  expiration  of 
the  second  year,  of  the  second  class  at  the  expiration  of  the 
fourth  year,  and  of  the  third  class  at  the  expiration  of  the 
sixth  year,  so  that  one-third  may  be  chosen  every  second 
year  ;  and  if  vacancies  happen  by  resignation,  or  otherwise, 
during  the  recess  of  the  legislature  of  any  State,  the  Execu 
tive  thereof  may  make  temporary  appointments  until  the  next 
meeting  of  the  legislature,  which  shall  then  fill  such  vacancies. 

When  the  Senate  convened,  March  4th,  1789,  there  were 
twenty  Senators  present :  Rhode  Island  and  North  Caro 
lina  had  not  yet  ratified  the  Constitution,  and  New  York 
had  not  elected  her  Senators.  These  twenty  were  divided 
by  lot  among  the  three  classes,  making  seven  of  the  first, 
seven  of  the  second,  and  six  of  the  third.  When  the  two 
Senators  from  New  York  took  their  seats,  July  26th,  one 
was  placed  in  the  third  class,  and  the  other  in  the  first, 
making  eight  of  the  first  class,  and  seven  of  each  of  the 
others.  The  North  Carolina  Senators,  who  came  in 
November  27th,  fell  into  the  second  and  third  classes. 
The  classes  had  now  eight  each  in  them.  Thus  the 
Senators  of  each  new  State  have  been  placed  in  different 
classes,  that  their  terms  might  not  expire  at  the  same 
time :  and  the  classes  have  been  kept  substantially  equal, 
so  that  the  terms  of  one-third  of  the  Senators  may  expire 
every  second  year. 

If  a  Senator  from  a  new  State  is  placed  in  the  third 
class,  we  are  not  to  infer  that  his  term  will  be  six  years. 
As  the  Constitution  went  into  operation  in  1789,  the 
terms  of  the  Senators  of  the  first  class  would  expire  in 
1791.  The  terms  of  their  successors  would  expire  in 
1797,  1803,  1809,  and  so  on.  The  terms  of  the  Senators 
of  the  second  class  would  expire  in  1793,  1799,  1805,  etc.; 
and  those  of  the  third  class  in  1795,  1801,  1807,  etc.  The 
Senators  from  Ohio  took  their  seats  in  1803.  One  of 
them  was  placed  in  the  first  class,  and  the  other  in  the 


1.  III.  2.  THE  SENATE.  61 

third.  As  terms  of  Senators  of  the  first  class  expire  in 
1809,  1815,  etc.,  the  one  in  the  first  class  would  remain 
in  office  six  years,  while  the  one  in  the  third  class 
would  remain  but  four,  the  terms  of  the  third  class  ex 
piring  in  1807. 

The  Senate  is  a  permanent  body,  while  the  House  of 
Representatives  is  changed  every   two  years.      As   the 
Constitution  went  into  operation  on  the  fourth  of  March, 
1789,  the  term  of  office  of  every  Senator,  as  well  as  Repre 
sentative,  ends  on  the  fourth   of   March   of  a  year  de 
noted  by  an  odd  number.     A  Congress  is  measured  by 
the  term  of  office  of  the  Representatives;  the  first  ex 
tending  from  the  fourth  of  March,  1789,  to  the  fourth 
of    March,    1791.      The    Forty-fourth     Congress    began 
March  4th,  1875,  and  ended  March  4th,  1877. 

When  a  vacancy  is  temporarily  filled  by  executive 
appointment,  the  Senator  thus  appointed  holds  his  office 
till  the  close  of  the  next  succeeding  term  of  his  State 
legislature.1 

The  legislature  of  a  State  sometimes  adopt  resolutions 
in  which  their  Representatives  in  Congress  are  "  re 
quested,"  and  their  Senators  "  instructed,"  to  vote  for 
certain  measures  ;  thereby  implying  that  the  legislature 
have  the  right  to  "  instruct"  their  Senators,  while  they 
have  not  the  right  in  regard  to  their  Representatives. 
But  there  is  no  right  of  instruction  in  either  case.  The 
Constitution  prescribes  the  mode  of  election  for  the  Sen 
ator  and  for  the  Representative;  one  is  elected  by  the 
legislature,  and  the  other  by  the  people  of  his  district. 
The  mode  is  immaterial ;  it  is  but  a  mode.  Once  elected, 
the  Senator,  as  well  as  the  Representative,  must  be 
guided  by  his  own  enlightened  judgment,  and  can  not 
be  instructed  by  those  who  elected  him.  Neither  is  the 
Senator  or  Representative  to  consult  exclusively  the 
interests  of  his  own  State  or  district.  He  is  a  member 


Towle,  p.  72. 


62  THE  CONSTITUTION.  1.  III.  3. 

of  a  body  which  legislates  for  the  nation.  He  is  to  con 
sult  the  interests  of  the  whole  people,  and  not  merely 
those  of  a  section. 

Clause  3. — Ab  person  shall  be  a  Senator  who  shall  not 
hare  attained  to  the  age  of  thirty  years,  and  been  nine  years 
a,  citizen  of  the  United  States,  and  who  shall  not,  when 
elected,  be  an  inhabitant  of  that  State  for  which  he  shall 
be  chosen. 

A  Representative  must  be  twenty-five  years  of  age;  a 
Senator,  thirty:  a  Representative  must  have  been  a  citi 
zen  seven  years;  a  Senator,  nine.  The  condition  as  to 
residence  is  the  same  for  both. 

The  age  required  in  a  Roman  Senator  was  thirty  years. 
In  Rome,  majority  was  not  attained  till  the  age  of 
twenty-five :  the  same  is  true  in  France  and  Holland.1 

Two  cases  have  occurred  of  elections  to  the  Senate 
without  the  requisite  number  of  years  of  citizenship. 
Albert  Gallatin  was  elected  from  Pennsylvania  in  1793: 
his  seat  was  vacated  by  resolution  of  the  Senate.  James 
Shields  was  elected  from  Illinois  in  January,  1849;  his 
saat  was  vacated  also,  but  he  was  re-elected  in  October 
of  the  same  year,  his  disability  having  been  by  that 
time  removed. 

There  is  nothing  to  prevent  a  Senator's  changing 
his  residence  to  another  State  after  his  election.  He 
is  not  the  representative  of  a  particular  State. 

Clause  4.—  The  Vice -President  of  the  United  States 
shall  be  President  of  the  Senate,  but  shall  have  no  cote, 
unless  they  be  equally  divided. 

The  Convention  that  formed  the  Constitution  did  not 
at  first  contemplate  such  an  officer  as  Vice-President. 
The  Senators  wera  to  elect  their  own  presiding  officer, 
who  was  to  become  President  of  the  United  States  in 
case  of  the  death,  resignation,  or  removal  of  that  officer. 

1  Story. 


1.  III.  5.  THE  SENATE.  68 

But  as  the  mode  of  electing  a  President,  which  was 
adopted  by  the  Convention,  required  two  persons  to 
be  voted  for  at  the  same  time,  the  one  receiving  the 
highest  number  of  votes  to  be  President,  this  provision 
for  a  Vice-President  was  made  near  the  close  of  the 
session.  The  Lieutenant-Governor  of  a  State  is  usually 
the  presiding  officer  of  the  State  Senate. 

The  casting  vote  of  the  V ice-President  can  be  of  effi 
cacy  only  when  in  favor  of  a  measure.  If  he  had  no 
vote,  no  measure  could  be  carried  upon  which  the 
Senate  were  equally  divided.  As  it  is,  he  has  helped 
to  carry  some  measures  of  great  importance.  By  a  rule 
of  the  Senate,  adopted  in  1828,  "  every  question  of  order 
shall  be  decided  by  the  president  without  debate,  sub 
ject  to  appeal  to  the  Senate." 

In  the  British  House  of  Lords,  the  Lord  Chancellor, 
or  some  other  person  appointed  by  the  Crown,  presides. 
If  no  person  is  appointed,  the  Lords  elect. 

Clause  5. — The  Senate  shall  choose  their  other  officers, 
and  also  a  President  pro  tempore,  in  the  absence  of  the 
Vice- President,  or  when  he  shall  exercise  the  office  of 
President  of  the  United  States. 

The  officers  of  the  Senate  are  a  Secretary,  Chief 
Clerk,  Executive  Clerk,  Sergeant-at-Arms,  Door-keeper, 
and  Chaplain. 

The  President  pro  tempore  seems  not  to  be  appointed 
permanently,  except  on  the  death  of  the  Vice-President, 
or  on  his  becoming  President.  Thus  on  the  twenty- 
third  of  March,  1869,  Mr.  Anthony  of  Rhode  Island 
was  chosen  President  pro  tempore,  Vice-President  Col  fax 
having  given  notice  that  he  should  be  absent  for  a  few 
days.  On  the  twenty-ninth  of  March  the  Vice-Presi 
dent  resumed  the  chair.  On  the  ninth  of  April  Mr. 
Anthony  was  elected  again,  the  Vice-President  being 
absent.  It  is  customary  thus  to  continue  to  elect  the 


64  THE  CONSTITUTION.  1.  III.  6. 

same  gentleman.     Mr.  Ferry  was  President  pro  tempore 
when  Vice-President  Wilson  died  in   1875. 

When  the  Vice-President  becomes  President  of  the 
United  States,  the  President  pro  tempore  receives  the 
salary  of  the  Vice-President.  The  President  pro  tempore 
is  not  restricted  to  a  casting  vote;  he  has  his  vote  as 
Senator. 

Clause  6. — The  Senate  shall  have  the  sole  power  to  try 
all  impeachments.  When  sitting  for  that  purpose,  they 
shall  be  on  oath  or  affirmation.  When  the  President  of  the 
United  States  is  tried,  the  Chief  Justice  shall  preside; 
and  no  person  shall  be  convicted  without  the  concurrence 
of  two-thirds  of  the  members  present. 

The  Senate,  whose  principal  functions  are  legislative, 
is  here  clothed  with  judicial  powers.  All  those  who 
are  impeached  by  the  House  of  Representatives  must 
be  tried  by  the  Senate. 

In  Great  Britain,  the  power  of  impeachment  is  with 
the  Commons,  and  the  power  of  trial  with  the  Lords; 
but  the  Lords  do  not  take  a  special  oath,  and  a  ma 
jority  is  sufficient  to  convict.  Our  method  is  thus  more 
favorable  to  the  party  under  trial  than  the  British. 

When  the  President  is  tried,  the  Chief  Justice  presides, 
because  the  Vice-President  is  interested  in  the  result  of 
the  trial.  If  the  President  is  convicted,  the  Vice-Presi 
dent  succeeds  to  the  office.  When  Andrew  Johnson  was 
tried  in  1868,  Chief  Justice  Chase  presided.  If  Mr.  John 
son  had  been  convicted,  the  President  pro  tempore  would, 
by  the  law  of  March  1st,  1792,  have  succeeded  to  the  Presi 
dency;  on  that  account  it  was  claimed  that  he  ought  not 
to  participate  in  the  trial.  His  own  view  of  his  right 
and  his  duty  differed  from  this,  however,  and  he  voted 
on  the  case  as  other  Senators. 

As  the  Constitution  provides  (Art.  II,  Sec.  1,  Clause  6) 
that,  in  case  of  the  inability  of  the  President  to  dis 
charge  the  duties  of  his  office,  Congress  may  declare 


1.  III.  7.  IMPEACHMENT.  65 

what  officer  shall  act  as  President  till  the  disability  be 
removed,  it  has  been  claimed  that  Congress  might 
make  a  trial  under  impeachment  such  a  disability,  and 
provide  that  during  the  trial  the  President  should  not 
exercise  the  office.  No  such  law  has  been  enacted,  and 
President  Johnson  continued  to  discharge  his  official 
duties  from  the  twenty-fourth  of  February,  when  the 
House  of  Representatives  voted  to  impeach  him,  to  the 
twenty-sixth  of  May,  when  the  final  vote  was  taken. 

There  have  been  seven  cases  of  impeachment:  Wil 
liam  Blount,  Senator  from  Tennessee,  in  1798;  John 
Pickering,  District  Judge  of  New  Hampshire,  in  1803; 
Samuel  Chase,  Associate  Justice  of  the  Supreme  Court, 
in  1804;  James  H.  Peck,  District  Judge  of  Missouri,  in 
1830;  West  H.  Humphries,  District  Judge  of  Tennes 
see,  in  1862;  Andrew  Johnson,  President,  in  1868;  and 
W.  W.  Belknap,  Secretary  of  War,  in  1876.  Judges 
Pickering  and  Humphries  only  were  convicted. 

Clause  7. — Judgment  in  cases  of  impeachment  shall  not 
extend  further  than  to  removal  from  office,  and  disqualifica 
tion  to  hold  and  enjoy  any  office  of  honor,  trust,  or  profit, 
under  the  United  States;  but  the  party  convicted  shall 
nevertheless  be  liable  and  subject  to  indictment,  trial,  judg 
ment,  and  jmnishment,  according  to  law. 

In  England,  there  is  no  such  limitation  in  the  pun 
ishment.  The  person  convicted  may  be  fined,  or  im 
prisoned,  or  banished,  or  put  to  death.  But  in  our 
country,  the  punishment  is  political — removal  from 
office  and  disqualification  for  it.  This  judgment,  how 
ever,  does  not  prevent  a  subsequent  trial  by  jury  for 
the  criminal  violation  of  law. 

In  a  subsequent  Article  it  is  provided  that  a  civil 
officer  of  the  United  States,  impeached  and  convicted, 
"shall  be  removed  from  office."  This  punishment  is 
imperative;  he  may  be  punished  further  by  disqualifi 
cation  to  hold  office.  The  punishment  inflicted  on  such 


66  THE  CONSTITUTION.  1.  IV.  1. 

an  officer,  who  has  been  convicted  by  the  Senate,  can 
not  be  less  than  removal  from  office ;  it  can  not  be 
greater  than  removal  and  disqualification  combined. 
Judge  Pickering  was  removed  from  office  only;  Judge 
Humphries  was  removed  from  office  and  declared  dis 
qualified  to  hold  any  office  of  honor,  trust,  or  profit 
under  the  United  States. 

Sec.  4,  Clause  1. — The  times,  places,  and  manner  of 
holding  elections  for  Senators  and  Representatives  shall  be 
prescribed  in  each  State  by  the  legislature  thereof ;  but 
tlie  Congress  may,  at  any  time,  by  law*  make  or  alter  such 
regulation*,  except  as  to  the  places  of  choo  <ing  Senators. 

By  Act  of  Congress,  passed  June  25th,  1842,  it  was  pro 
vided  that  Representatives  should  be  elected  by  districts 
of  contiguous  territory  equal  to  the  number  of  Repre 
sentatives.  This  is  believed  to  have  been  the  first  in 
stance  of  any  regulations  by  Congress  touching  elections 
of  Senators  or  Representatives.  In  1866  (July  25th), 
an  act  was  passed  to  regulate  the  mode  of  choosing  Sen 
ators,  as  already  stated.  In  1871  (February  28th), 
Congress  enacted  that  all  votes  for  Representatives  in 
Congress  should  be  by  written  or  printed  ballots,  any 
law  of  any  State  to  the  contrary  notwithstanding.  In 
1872  (February  2d),  provision  was  made  that  Represent 
atives  should  be  elected  on  the  same  day  throughout 
the  United  States,  viz.,  on  the  Tuesday  after  the  first 
Monday  in  November;  to  go  into  effect  in  1876.  By 
act  of  1875,  states  whose  constitutions  prescribed  a  dif 
ferent  day  were  exempted  from  its  effect. 

This  clause,  giving  to  Congress  the  ultimate  control 
as  to  elections  for  Senators  and  Representatives,  met 
with  little  opposition  in  the  Convention,  but  it  was 
opposed  in  some  of  the  State  Conventions  called  to 
ratify  the  Constitution.  "Its  propriety,"  says  Mr.  Ham 
ilton,  "rests  upon  the  evidence  of  this  plain  proposition, 
that  every  government  ought  to  contain  in  itself  the 


1.  IV.  2.  CONGRESSIONAL   ELECTIONS.  67 

means  of  its  own  preservation."1  But  the  opponents 
of  the  Constitution  maintained  that  this  clause  gave  to 
Congress  the  whole  ultimate  control  of  elections  for 
members  of  Congress,  including  the  qualifications  of 
electors  and  elected,  except  as  stated  elsewhere  in  the 
Constitution.  Patrick  Henry  said:  "The  control  given 
to  Congress  over  the  time,  place,  and  manner  of  holding 
elections  will  destroy  the  end  of  suffrage.  *  *  * 
Congress  may  tell  you  they  have  a  right  to  make  the 
vote  of  one  gentleman  go  as  far  as  the  votes  of  a  hun 
dred  poor  men.  *  *  *  They  may  regulate  the  num 
ber  of  votes  by  the  quantity  of  property,  without  in 
volving  any  repugnancy  to  the  Constitution."  'i 

The  practice  has  been  for  the  States  to  prescribe  the 
qualifications  of  voters  in  their  constitutions.  Mr. 
Farrar  claims,  on  the  other  hand,  that  it  was  well 
understood  by  both  parties  at  the  time  the  Constitution 
was  framed,  "that  the  whole  law  of  elections,  subject 
to  the  provisions  of  the  Constitution,  was  under  the 
control  of  Congress."  3 

The  Constitution  of  the  Confederate  States  says,  "No 
person  of  foreign  birth,  not  a  citizen  of  the  Confederate 
States,  shall  be  allowed  to  vote  for  any  officer,  State  or 
Federal."  Thus  their  federal  Constitution  prescribed 
qualifications  for  voters  at  State  elections. 

The  restricting  clause,  as  to  the  place  of  choosing 
Senators,  was  inserted  that  Congress  should  not  have 
the  right  to  prescribe  to  the  State  legislatures  their 
places  of  meeting. 

Clause  2. —  The  Congress  shall  assemble  at  least  once  in 
every  year,  and  such  meeting  shall  be  on  the  first  Monday 
in  December,  unless  they  shall  by  law  appoint  a  different 
day. 

Annual  sessions  are  thus  made  imperative.     As  the 

1  Federalist,  No.  59.  2  Elliot's  Debates,  III,  pp.  CO,  175. 

3  Manual  of  the  Constitution,  p.  268. 


b«  THE  CONSTITUTION.  1.  IV.  2. 

term  of  each  Congress  is  two  years,  there  would  be  two 
regular  sessions  during  each  term.  In  eighty-eight 
years  from  March  4th,  1789,  or  to  the  end  of  the  Forty- 
fourth  Congress,  there  have  been  eleven  instances  of 
three  sessions  by  the  same  Congress.1  For  the  first 
thirty-two  years,  the  regular  sessions  began  on  the  first 
Monday  in  December  about  half  the  time:  since  that, 
all  the  regular  sessions  have  begun  on  that  day. 

The  first  regular  session  of  each  Congress  usually 
continues  from  December  till  the  following  spring  or 
surnmer.  The  Thirty-first  Congress  was  in  session  till 
the  thirtieth  of  September — three  hundred  and  two 
days.  The  second  regular  session  closes  at  noon  on  the 
fourth  of  March,  being  thus  about  three  months  long. 
But  though  the  constitutional  term  of  Congress  ends 
at  noon  on  the  fourth  of  March  (it  formerly  ended  at 
midnight  of  the  third),  the  Journals  of  the  Senate  and 
House  of  Representatives  bear  the  date  of  the  third  of 
March,  and  the  laws  signed  by  the  President  after  mid 
night  are  dated  on  the  third  and  not  on  the  fourth. 

By  act  of  January  22d,  1867,  each  new  Congress  was 
required  to  meet  "at  twelve  o'clock,  meridian,  on  the 
fourth  day  of  March,  the  day  on  which  the  term  begins 
for  which  the  Congress  is  elected."  Under  this  act 
each  Congress  had  three  sessions;  the  first  commencing 
on  the  fourth  of  March,  the  second  on  the  first  Monday 
of  December  of  that  year,  and  the  third  on  the  first 
Monday  of  December  of  the  following  year.  The  first 
session  was  very  short,  and  the  second  and  third  were 
regarded  as  the  regular  sessions.  This  act  has  now 
been  repealed.  It  was  in  force  during  the  Fortieth, 
Forty-first,  and  Forty-second  Congresses. 

Under  the  Articles  of  Confederation,  Congress  might 


1  There  were  three  sessions  in  the  First  Congress,  the  Fifth,  Eleventh, 
Thirteenth,  Twenty-fifth,  Twenty-seventh,  Thirty-fourth,  Thirty -sev 
enth,  Fortieth,  Forty-first,  and  Forty-second. 


1.  V.  1.  CONGRESSIONAL   ELECTIONS.  69 

adjourn  to  any  time  within  the  year,  but  no  period  of 
adjournment  could  be  for  a  longer  time  than  six 
months.  Congress  was  thus  a  permanent  body,  and 
not  subject  to  periodic  dissolution  as  now. 

Sec.  5,  Clause  1. — Each  House  shall  be  the  judge  of 
the  elections,  returns,  and  qualifications  of  its  own  mem 
bers,  and  a  majority  of  each  shall  constitute  a  quorum  to 
do  business ;  but  a  smaller  number  may  adjourn  from  day 
to  day,  and  may  be  authorized  to  compel  the  attendance  of 
absent  members,  in  such  manner  and  under  such  penalties 
as  each  House  may  provide. 

The  certificate  of  election  furnished  by  the  State  au 
thorities  is  prima  facie  evidence  that  the  person  holding 
it  is  entitled  to  a  seat,  but  it  is  not  conclusive.  Each 
House  has  a  Committee  on  Elections,  to  whom  are  re 
ferred  all  doubtful  cases,  and  on  their  report  the  House 
decides :  from  this  decision  there  is  no  appeal.  The 
recent  war  has  multiplied  the  number  of  such  cases, 
and,  in  repeated  instances,  persons  holding  certificates 
of  election  have  not  been  deemed  entitled  to  member 
ship.  The  British  Parliament  and  most  legislative 
bodies  exercise  the  same  power  as  to  the  admission  of 
members. 

A  majority  seems  to  be  a  suitable  quorum.  In  the 
British  House  of  Commons,  composed  of  over  six 
hundred  members,  forty-five  is'  a  quorum.  Under  the 
Articles  of  Confederation,  no  question,  except  that  of 
adjournment,  could  be  decided  unless  by  a  majority  of 
ail  the  States,  and  for  the  most  important  questions 
nine  States  were  required,  i.  e.,  two-thirds.  There  was 
no  power  to  compel  attendance,  and  business  was  fre 
quently  delayed  through  the  absence  of  members.  In 
one  instance,  Congress  assembled  on  the  third  of  No 
vember,  but  there  was  no  quorum  till  the  fourteenth 
of  January.  Rhode  Island  once  recalled  her  delegates, 
and  so  prevented  the  transaction  of  important  business. 


70  THE  CONSTITUTION.  1.  V.  2. 

In  the  State  of  Ohio,  no  bill  can  be  passed  without 
the  votes  of  a  majority  of  all  the  members  elected  to 
each  House.  The  new  constitution  of  Illinois  has  a 
similar  provision. 

By  a  rule  of  the  House  of  Representatives,  fifteen 
members,  including  the  Speaker,  can  compel  attend 
ance.1 

Clause  2. — Each  House  may  determine  the  rules  of  its 
proceedings,  punish  its  members  for  disorderly  behavior, 
and,  with  the  concurrence  of  two-thirds,  expel  a  member. 

The  "  rules  of  proceedings  "  constitute  what  is  called 
Parliamentary  Law.  When  the  first  Congress  convened, 
in  1789,  the  House  of  Representatives  established  rules, 
some  of  which  are  still  in  force.  At  the  beginning  of 
the  first  session  of  each  Congress  it  is  usual  to  adopt 
the  rules  of  the  previous  Congress  until  otherwise 
ordered,  and  a  committee  is  appointed  to  report  new 
rules  during  the  session.  The  rules  of  the  House  of 
Representatives  may  be  found  in  the  Appendix  of  their 
Journal. 

The  power  to  punish  a  member  has  been  exercised  by 
both  Houses.  William  Blount,  Senator  from  Tennessee, 
was  expelled  in  1797,  and  Jesse  D.  Bright,  Senator  from 
Indiana,  in  1863. 

It  seems  to  be  settled  that  a  member  may  be  ex 
pelled  for  any  misdemeanor  which,  though  not  punish 
able  by  any  statute,  is  inconsistent  with  the  trust  and 
duty  of  a  member. 

The  Constitution  does  not  confer  any  express  power 
to  punish  contempts,  i.  e.,  offenses  by  persons  not  mem 
bers  of  the  House,  but  this  power  has  been  considered 
to  belong  to  legislative  assemblies  as  such,  and  the 
Supreme  Court  has  so  decided.  But  the  power  to  pun 
ish  is  held  to  extend  only  to  imprisonment,  and  this 


1  Journal  H.  R.  Thirty-ninth  Congress,  p.  1204. 


l.V.  3.  VOTING  BY  YEAS  AND  NAYS.  71 

only  until  the  dissolution  of  the  House  by  which  the 
punishment  is  inflicted. 

Clause  $.—Each  House  shall  keep  a  joufnal  of  its 
proceedings,  and  from  time  to  time  publish  the  same,  ex 
cepting  such  parts  as  may  in  their  judgment  require 
secrecy ;  and  the  yeas  and  nays  of  the  members  of  either 
House,  on  any  question,  shall,  at  the  desire  of  one-fifth 
of  those  present,  be  entered  on  the  journal. 

It  is  usual  for  both  Houses  to  have  open  sessions, 
except  the  Senate  when  in  Executive  session,  i.  e., 
acting  upon  nominations  made  by  the  President,  or 
engaged  in  discussion  of  treaties.  The  Convention 
that  framed  the  Constitution  sat  with  closed  doors,  and 
so  did  the  Senate  from  the  beginning  of  the  First  Con 
gress  until  the  second  session  of  the  Third  Congress. 

There  are  three  methods  of  voting  in  Congress.  The 
usual  method  is  viva  voce;  the  presiding  officer  deciding 
by  his  ear.  If  he  is  doubtful  as  to  the  result,  he  makes 
a  count;  or,  if  a  member  questions  the  correctness  of 
his  decision,  a  division  of  the  House  is  called  for,  and 
tellers  are  appointed  who  count  the  voters.  But  in 
important  questions  the  roll  of  the  House  is  called  by 
the  Clerk,  and  each  member's  vote  is  recorded  in  the 
journal.  This  is  voting  by  "  Yeas  and  Nays."  It 
enables  the  people  to  know  how  their  representatives 
vote. 

The  Articles  of  Confederation  required  the  yeas  and 
nays  to  be  taken  when  called  for  by  a  single  member. 
The  present  provision,  making  the  yeas  and  nays  de 
pendent  on  the  call  of  one-fifth  the  members  present, 
is  a  decided  improvement  on  the  former  one.  A  fac 
tious  minority  often  avail  themselves  of  this  rule  to 
delay  proceedings,  and  prevent  the  passage  of  a  bill. 
Thus  a  member  moves  for  adjournment,  for  example, 
and  asks  for  the  yeas  and  nays.  If  a  fifth  of  those 


72  THE  CONSTITUTION.  1.  VI.  1. 

present  concur  in  this  request,  the  roll  must  be  called, 
occupying  much  time.  Oftentimes  the  member  mov 
ing  to  adjourn  votes  against  his  own  motion. 

Clause  1, — Neither  House,  daring  the  session  of  Con 
gress,  shall,  without  t/te  consent  of  the  other,  adjourn  for 
more  than  tliree  days,  nor  to  any  other  place  than  that 
in  which  the  two  Houses  shall  be  sitting. 

Under  the  Articles  of  Confederation,  Congress  could 
adjourn  to  any  time  within  the  year,  and  to  any  place 
within  the  United  States,  but  no  adjournment  could 
be  for  a  longer  period  than  six  months.  The  present 
provision  prevents  either  House  from  interrupting,  by 
adjournment,  the  progress  of  business. 

Sec.  (>,  Clause  1. — The  Senators  and  Representatives 
shall  receive  a  compensation  for  their  services,  to  be  as 
certained  by  law,  and  paid  out  of  the  Treasury  of  the 
United  States.  They  shall  in  all  cases,  except  treason, 
felony,  and  breach  of  the  peace,  be  privileged  from  arrest 
daring  their  attendance  at  the  session  of  their  respective 
Houses,  and  in  going  to  and  returning  from  the  same  ; 
and  for  any  speech  or  debate  in  either  House,  they  shall 
not  be  questioned  in  any  other  place. 

Under  the  Articles  of  Confederation,  each  State  paid 
its  own  members  of  Congress.  By  providing  for  their 
payment  from  the  national  treasury,  the  Constitution 
makes  them  independent  of  the  States.  In  the  Con 
vention  Mr.  Madison  said,  "he  could  not  see  any  chance 
of  that  stability  in  the  general  government  the  want 
of  which  was  a  principal  evil  in  the  State  govern 
ments,"  if  the  members  were  left  dependent  on  the 
States  for  their  compensation. 

In  the  British  Parliament  the  members  receive  no 
compensation.  And  in  our  Convention,  Gen.  Pinckney 
suggested,  as  the  Senatorial  branch  was  to  represent 
the  wealth  of  the  country,  that  no  salary  be  allowed. 


J.V1.  1.  CONGRESSIONAL  COMPENSATION.  73 

This  was  seconded  by  Dr.  Franklin,  but  disagreed  to; 
the  vote  standing  six  to  five. 

The  compensation  is  to  be  ascertained  by  law;  that 
is,  Congress  itself  is  authorized  by  the  Constitution  to 
determine  it.  The  First  Congress  passed  an  act  fixing 
the  allowance  at  six  dollars  a  day  while  in  attendance, 
and  six  dollars  for  each  twenty  miles  of  travel  in  go 
ing  and  returning.  The  Speaker  of  the  House,  besides 
his  pay  as  Representative,  was  to  have  six  dollars  a 
day  additional. 

This  rate  continued  till  1815,  except  that  for  one 
year,  1795,  the  Senators  received  seven  dollars  a  day, 
and  the  same  for  each  twenty  miles  of  travel.  By  act 
of  March  19th,  1816,  the  compensation  was  fixed  at 
fifteen  hundred  dollars  a  year  for  each  Senator  and 
Representative:  the  Speaker  to  receive  three  thousand 
dollars,  and  the  President  pro  tempore  of  the  Senate,  the 
same  when  there  should  be  no  Vice-President.  This 
was  repealed  "in  February,  1817,  having  been  operative 
only  during  the  Fourteenth  Congress. 

In  1818 — January  22d  —  the  per-dieni  system  was  re 
stored,  to  be  operative  from  March  4th,  1817,  the  rate 
being  established  at  eight  dollars  a  day,  and  eight  dol 
lars  for  each  twenty  miles  of  travel :  the  Speaker,  and 
the  President  pro  tempore  of  the  Senate,  in  the  absence 
of  the  Vice-President,  receiving  eight  dollars  a  day  ad 
ditional. 

This  rate  continued  till  the  Thirty-fourth  Congress, 
which  passed  an  act — August  16th,  1856  —  establishing 
the  compensation  at  three  thousand  dollars  a  year,  and 
eight  dollars  for  each  twenty  miles  going  and  return 
ing,  for  two  sessions  only:  the  Speaker  receiving  six 
thousand  dollars;  and  the  President  pro  tempore  of  the 
Senate,  in  the  absence  of  the  Vice-President,  the  salary 
of  that  officer,  which  had  been  raised  to  eight  thou 
sand  dollars. 

In  1866 — July  28th  —  it  was  raised  to  five  thousand 
C.  G.  7. 


74  THE  CONSTITUTION.  1.  VI.  1. 

dollars  a  year,  and  mileage  at  the  rate  of  "  twenty  cents 
a  mile,  to  be  estimated  by  the  nearest  route  usually 
traveled  in  going  to  and  returning  from  each  regular 
session."  The  pay  of  the  Speaker  was  fixed  at  eight 
thousand  dollars  per  annum,  this  being  the  salary  of 
the  Vice-President. 

In  1873,  March  3d,  another  change  was  made.  The 
compensation  was  raised  from  five  thousand  to  seven 
thousand  five  hundred  dollars,  with  actual  traveling  ex 
penses.  The  Speaker  of  the  House  and  the  President  pro 
tempore  of  the  Senate  were  to  receive  ten  thousand  dol 
lars.  In  1874,  January  24th,  the  act  was  repealed  so  far 
as  concerned  these  salaries,  thus  making  them,  as  before, 
five  thousand  and  eight  thousand  dollars  respectively. 

The  change  made  in  1816,  from  six  dollars  a  day  to 
fifteen  hundred  dollars  a  year,  was  received  by  the  peo 
ple  with  great  disfavor,  and  many  members  were  not 
returned  to  the  next  Congress  in  consequence.  The 
more  recent  change,  in  1873,  also  called  forth  very  se 
vere  criticism.  The  members  were  blamed  for  the 
large  increase  of  salary,  and  still  more  for  making  it 
retroactive.  A  number  of  members  refused  to  receive 
the  increase  for  the  time  already  expired.  The  re 
troactive  feature  is,  however,  not  peculiar  to  the  act 
of  1873.  The  law  of  1816  — March  16th  — was  opera 
tive  from  March  4th,  1815.  That  of  August  16th,  1856, 
increased  the  compensation  from  March  4th,  1855.  So 
that  of  July  28th,  1866,  took  effect  from  March  4th, 
1865.  Every  act  of  Congress,  therefore,  to  increase  the 
pay  of  Senators  and  Representatives,  has  been  retro 
active  in  its  operation,  covering  a  period  varying  from 
twelve  months  to  twenty-four. 

All  the  acts  prior  to  that  of  1866  were  separate  and 
independent  acts;  but  the  one  of  1866,  and  that  of  1873, 
were  sections  in  appropriation  bills.  They  were  both 
passed  on  the  last  days  of  the  respective  sessions. 

From  1789  to  the  present  time,  then,  the  compensa- 


1.  VI.  2.  FREEDOM   FROM  ARREST.  75 

tion  has  been  as  follows:  1789  to  1815,  $6.00  a  day; 
1815  to  1817,  $1500  a  year;  1817  to  1855,  $8.00  a  day; 
1855  to  1865,  $3000  a  year;  1865  to  1871,  $5000  a  year; 
1871  to  1874,  $7500  a  year;  1874  and  since,  $5000  a  year. 

By  act  of  March  29th,  1867,  each  Senator,  Represent 
ative,  and  Delegate,  after  having  taken  the  required 
oath,  is  entitled  to  receive  his  compensation  at  the 
end  of  each  month. 

The  privilege  of  freedom  from  arrest  has  belonged  to 
legislative  bodies  in  Europe  for  many  years.  The  ex 
ceptional  cases  are  what  are  called  indictable  offenses. 
Whoever  should  cause  the  arrest  of  a  member  would 
be  liable  for  trespass,  and  might  also  be  punished  for 
contempt  of  the  House.  The  privilege  commences  from 
the  time  of  the  election,  and  before  the  member  takes 
his  seat  or  is  sworn. 

Freedom  of  debate  is  secured  by  this  clause.  But 
the  privilege  is  confined  to  words  spoken  in  the  course 
of  parliamentary  proceedings,  and  does  not  cover  things 
done  beyond  the  place  and  limits  of  duty;  while  a 
member  can  not  be  questioned  for  a  speech  delivered 
in  the  House,  he  might  be  liable  if  he  should  cause 
the  speech  to  be  published. 

The  privilege  from  arrest  secures  the  member,  of 
course,  against  all  process,  the  disobedience  to  which  is 
punishable  by  attachment  of  the  person,  as  a  subpoena, 
or  a  summons  to  serve  on  "a  jury.  (Story,  Vol.  II,  p. 
608.) 

Clause  2. — No  Senator  or  Representative  shall,  during 
the  tim.e  for  which  he  was  elected,  be  appointed  to  any  civil 
office  under  the  authority  of  the  United  States  which  shall 
have  been  created,  or  the  emoluments  whereof  shall  have 
been  increased,  during  such  time;  and  no  person  holding 
any  office  under  the  United  States  shall  be  a  member  of 
either  House  during  his  continuance  in  office. 

The  first  part  of  this  clause  was  intended  to  prevent 


1MB  CMamtUliME.  1.YXL1. 


--  ..      -.    -    :        -    :-  -  -        -          :-.  -<      ;- 

-    -         -       -      - 
lax*  <«c«*  rtiA  ii*y  ti^m^T^  m»i  iKfie  to  fflL 

:  ^        -  -       :         -     --   . ..     .  ,    .          --  -    .  :     : 

•  "  "     .  :  '     : 


.  *.  Ore*  L— 


- 


1.  VII.  2.  BILLS  FOR  RAISING  REVENUE. 

branch  of  the  legislature,  and  shall  not  be  altered  or 
amended  by  the  second  branch." 

Our  circumstances  differ  so  widely  from  those  of  Great 
Britain  that  there  seems  to  be  no  sufficient  reason  why 
the  Senate  may  not  vriyinate  bills  for  raising  revenue 
as  well  as  amend  them ;  why  they  may  not  provide  for 
raising  revenue  as  well  as  make  appropriations.  During 
the  third  session  of  the  Forty-first  Congress,  the  Senate 
passed  a  bill  to  rejjeal  the  law  imposing  the  income  tax. 
But  the  House  of  Representatives,  instead  of  acting 
upon  it  in  the  usual  way,  passed  a  resolution  calling 
the  attention  of  the  Senate  to  this  clause  of  the  Con 
stitution. 

Bills  looking  to  the  raising  of  money  have  originated 
in  the  Se'nate  and  have  passed  into  laws :  as  the  bill  to 
establish  the  post-office,  that  to  establish  the  mint,  and 
bills  to  regulate  the  sale  of  the  public  lands.  Raiding 
revenue  is  understood  thus  to  be  confined  to  levying  taxes. 

Clause  2. — Every  bill  which  shall  have  passed  the  House 
of  Representatives  and  the  Senate,  shall,  before  it  become 
a  laic,  be  presented  to  tJie  President  of  the  United  States; 
if  he  approve  he  shall  sign  it,  but  if  not  he  shall  return  it 
with  his  objections  to  that  House  in  which  it  shall  hare 
originated,  who  shall  enter  the  objections  at  large  in  their 
journal,  and  p-oceed  to  reconsider  it.  If,  after  such  re 
consideration,  two-thirds  of  that  House  shall  agree  to  pass 
the  bill,  it  shall  be  sent,  together  with  the  objections,  to  the 
other  House,  by  which  it  shall  likewise  be  reconsidered, 
and  if  approved  by  two-thirds  of  that  House,  it  shall  be 
come  a  law.  But  in  all  such  cases  the  votes  of  both 
Houses  shall  be  determined  by  yeas  and  nays,  and  the 
names  of  the  persons  voting  for  and  against  the  bill  shall 
be  entered  on  the  journal  of  each  House  respectively.  If 
any  bill  shall  not  be  returned  by  the  President  within  ten 
days  (Sundays  excepted)  after  it  shall  have  been  presented 


78  THE  CONSTITUTION.  1.  VII.  2. 

to  him,  the  same  shall  be  a  law,  in  like  manner  as  if  he  had 
signed  it,  unless  the  Congress,  by  their  adjournment,  pre 
vent  its  return,  in  which  case  it  shall  not  be  a  law. 

This  clause  gives  the  President  some  participation  in 
legislation.  The  Executive  and  Legislative  depart 
ments  are  not  entirely  disjoined.  But  the  President's 
participation  is  negative.  This  returning  of  a  bill  with 
objections  is  called  vetoing  the  bill,  though  the  word 
veto  does  not  occur  in  the  Constitution.  In  Great  Brit 
ain  the  sovereign  possesses  an  absolute  veto,  but  it  is 
said  not  to  have  been  exercised  since  1692,  in  the  reign 
of  William  III,  with,  perhaps,  a  single  exception. 

In  the  Convention  various  plans  were  discussed  for 
revising  the  bills  passed  by  Congress.  One  was  to  give 
the  right  of  revising  all  bills  to  the  Executive  and  the 
Judiciary.  This  was  Mr.  Randolph's  plan,  and  was  ap 
proved  by  Mr.  Madison.  Some  members  wished  the 
President  to  have  an  absolute  veto.  At  one  time  the 
Convention  voted  in  favor  of  requiring  a  vote  of  three- 
fourths  of  each  House  in  order  to  pass  a  bill  over  the 
President's  veto. 

The  present  method  has  commended  itself  to  the 
people  of  the  country.  It  is,  doubtless,  better  than  one 
admitting  an  unqualified  veto,  and  better  than  one 
that  should  require  a  three-fourths  vote  in  each  House. 
The  practice  in  the  State  governments  is  not  uniform. 
In  some  the  Governor  has  no  veto,  while  in  others  a 
bill  may  be  passed  over  a  veto  by  a  bare  majority  in 
each  House. 

The  veto  power  has  been  used  by  most  of  the  Presi 
dents.  Washington  vetoed  two  bills;  Madison  vetoed 
five  and  retained  one;  Monroe  vetoed  one;  Jackson  vetoed 
seven  and  retained  two;  Tyler  vetoed  five;  Polk,  three; 
Pierce,  four ;  Buchanan,  one;  Johnson  vetoed  twenty-one 
and  retained  nineteen  which  became  laws.  No  bill  was 
passed  over  the  veto  of  the  President  till  the  admin- 


1.  VII.  3.  THE  PRESIDENT  MAY  VETO.  79 

istration  of  Mr.  Tyler.  One  was  so  passed  in  his  ad 
ministration,  four  in  that  of  Mr.  Pierce,  and  seventeen 
in  that  of  Andrew  Johnson. 

It  has  been  decided  by  the  Senate — July  7th,  1856— 
that  two-thirds  of  a  quorum  only  were  requisite  to  pass 
a  bill  over  the  President's  veto,  and  not  two-thirds  of 
the  whole  Senate. 

There  are  three  methods  by  which  a  bill  may  become 
a  law.  (a.)  If  it  is  passed  by  a  majority  of  each  House 
and  is  signed  by  the  President.  (6.)  Without  the  sig 
nature  of  the  President,  if  it  receives  the  votes  of  two- 
thirds  of  the  members  present  of  each  House,  after 
having  been  returned  by  the  President  with  his  objec 
tions,  (c.)  If,  having  been  passed  by  each  House  and 
sent  to  the  President,  it  is  retained  by  him  ten  days 
(Sundays  excepted),  it  becomes  a  law,  unless  Congress 
has  adjourned  in  the  mean  time. 

Clause  3. — Every  order,  resolution,  or  vote,  to  which  the 
concurrence  of  the  Senate  and  House  of  Representatives 
may  be  necessary  (except  on  a  question  of  adjournment) 
shall  be  presented  to  the  President  of  the  United  States, 
and  before  the  same  shall  take  effect  shall  be  approved  by 
him,  or,  being  disapproved  by  him,  shall  be  repassed  by 
two-thirds  of  the  Senate  and  House  of  Representatives, 
according  to  the  rules  and  limitations  prescribed  in  the 
case  of  a  bill. 

This  clause  prevents  the  passage  of  laws  under  the 
name  of  resolutions,  etc.,  without  the  approval  of  the 
President.  The  process  is  the  same,  no  matter  what 
may  be  the  term  employed,  whether  order,  resolution, 
vote,  or  bill.  Whatever  does  not  relate  to  the  internal 
government  of  the  individual  House,  as  elections,  votes 
of  censure  or  thanks,  etc.,  requires  the  signature  of  the 
President,  or  a  two- thirds  majority  in  each  House.  A 
joint  resolution,  approved  by  the  President,  or  duly 
passed  without  his  approval,  has  all  the  effect  of  law. 


THE  CONSTITUTION.  l.V'III. 

A  resolution  of  Congress  proposing  an  amendment 
to  the  Constitution  does  not  require  the  signature  of 
the  President;  though  in  one  or  two  cases  such  reso 
lutions  have  been  sent  to  him  through  inadvertence. 
In  February,  1865,  Congress  passed  a  joint  resolution 
that  the  electoral  votes  for  President  and  Vice-Presi 
dent,  given  in  certain  States  then  in  rebellion  against 
the  government,  should  not  be  received  or  counted. 
The  President  approved  the  resolution,  but  said  in  a 
message  that  his  approval  was  not  necessary.  (The 
electoral  votes  were  counted  on  the  eighth,  though  the 
official  approval  of  the  President  was  not  received  till 
the  tenth.)  In  March,  1866,  the  two  Houses  determined 
that  neither  House  should  consider  the  credentials  of 
any  man  presented  as  a  member  from  a  State  lately 
declared  to  be  in  rebellion,  until  Congress  shall  have 
decided  that  such  State  is  entitled  to  representation 
therein.  This  resolution  was  not  sent  to  the  President. 

Sec.  8. — fhe  Congress  shall  have  power 

In  Article  I,  Section  1,  it  is  declared  that  all  legis 
lative  powers  granted  in  the  Constitution  shall  be 
vested  in  a  Congress  of  the  United  States.  In  Section 
8  it  is  declared  more  specifically  that  Congress  shall 
have  power,  i.  e.,  rightful  authority,  to  legislate  on 
various  subjects.  But  it  is  not  intended  that  this  shall 
be  considered  an  exhaustive  enumeration  of  the  powers 
of  Congress,  or  that  Congress  shall  not  legislate  except 
on  the  matters  here  mentioned;  for  the  eighteenth 
clause  gives  Congress  power  "  To  make  all  laws  which 
shall  be  necessary  and  proper  for  carrying  into  execu 
tion  the  foregoing  powers,  and  all  other  powers  vested 
by  this  Constitution  in  the  government  of  the  United 
States,  or  in  any  department  or  officer  thereof."  The 
Constitution  itself  in  other  sections  requires  of  Con 
gress  the  exercise  of  powers  not  specifically  mentioned 
in  this  section;  and  it  implies  in  various  places  that 


1.VIII.  1.    TAXES,  DUTIES,  IMPORTS,  AND  EXCISES.  81 

Congress  must  do  what  it  is  nowhere  in  the  Consti 
tution  expressly  authorized  to  do.  Some  of  these  cases 
will  be  cited,  and  the  subject  will  be  still  further  dis 
cussed,  in  connection  with  the  consideration  of  the 
eighteenth  clause. 

Clause  1. — To  lay  and  collect  taxes,  duties,  imposts, 
and  excises,  to  pay  the  debts  and  provide  for  the  common 
defense  and  general  welfare  of  the  United  States;  but  all 
duties,  imposts,  and  excises  shall  be  uniform  throughout 
the  United  States. 

Every  civil  government  must  have  a  revenue  for 
its  own  support,  and  the  subject  of  raising  funds  is 
appropriately  placed  in  this  first  clause.  Under  the 
Articles  of  Confederation  the  common  treasury  was 
supplied  by  the  several  States,  in  proportion  to  the 
value  of  the  land  with  the  buildings  and  improve 
ments.  Taxes  were  not  laid  and  collected  by  the  gen 
eral  government,  but  were  levied  by  the  authority  and 
direction  of  the  legislatures  of  the  several  States.  The 
subject  was  discussed  in  the  Convention  with  great 
earnestness,  and  the  result  was  to  give  to  Congress  the 
control  of  the  whole  subject  of  taxation  and  revenue 
so  far  as  relates  to  the  administration  of  the  general 
government. 

The  obvious  construction  of  the  language  of  the 
clause  makes  it  confer  upon  Congress  the  power  to 
raise  a  revenue  for  the  purpose  of  paying  the  debts 
and  providing  for  the  common  defense  and  general 
welfare.  This  involves  the  power  to  pay  the  debts  and 
provide  for  the  general  welfare. 

The  four  terms  used,  taxes,  duties,  imposts,  and  excises, 
were  originally  of  nearly  the  same  signification.  They 
imply  pecuniary  burdens  imposed  by  a  civil  govern 
ment  upon  its  subjects.  This  clause  distinguishes  be 
tween  taxes  and  the  others,  inasmuch  as  it  states  that 


THE  CONSTITUTION.  1.  VIII.  1. 

"all  duties,  imposts,  and  excises  shall  be  uniform  through 
out  the  United  States."  In  Article  I,  Section  2,  Clause 
3,  Representatives  and  direct  taxes  are  required  to  be 
apportioned  among  the  several  States  in  proportion  to 
their  population. 

In  Political  Economy,  that  is  a  direct  tax  which 
comes  from  the  property  of  the  nominal  payer,  while 
an  indirect  tax  is  assessed  on  one  person  but  is  really 
paid  by  another.  Duties  on  goods  imported  are  indi 
rect,  as  the  consumer  pays  them.  Poll  taxes  and  those 
imposed  directly  on  property  are  direct.  The  provision 
of  the  Constitution  as  to  direct  taxes  prevents  our  strict 
observance  of  this  distinction;  and  the  courts  have  de 
cided  that  taxes  on  carriages,  for  example,  are  not  di 
rect  taxes,  though  Political  Economy  would  so  regard 
them.  So  also  of  taxes  on  incomes. 

The  taxes  levied  by  the  SJate  governments,  by  coun 
ties,  and  by  cities  and  towns,  are  for  the  most  part 
direct  taxes.  The  constitution  of  the  State  of  Ohio 
prohibits  poll  taxes,  and  requires  that  all  property  shall 
be  taxed  equally.  The  revenues  of  the  general  govern 
ment  are  almost  wholly  from  indirect  taxation.  Con 
gress  has  never  levied  a  general  tax  on  all  the  prop 
erty  of  the  country.  Until  the  war  of  the  rebellion  the 
general  government  derived  nearly  all  its  revenues  from 
duties  on  goods  imported  into  the  country.  Before  that 
time  a  direct  tax  had  been  laid  but  four  times  since 
the  adoption  of  the  Constitution,  viz.,  in  1798,  1813, 
1815,  1816.  In  these  cases  the  tax  was  upon  lands, 
houses,  and  slaves.  The  amount  of  tax  to  be  paid  by 
each  State,  was  named  in  the  act,  and  was  in  propor 
tion  to  the  population,  and  not  according  to  the  prop 
erty  of  the  State.  In  one  or  two  of  the  cases  the 
amount  of  tax  assessed  upon  each  county  of  the  several 
States  wras  given.  In  the  act  of  1798,  the  tax  on  each 
slave  was  fifty  cents.  In  the  others  all  the  property 
taxed  —  dwelling-houses,  lands,  and  slaves  —  was  to  be 


1.  VIII.  1.  DIRECT  TAXES.  83 

assessed  at  its  true  value.  In  each  case  the  tax  was 
in  force  but  a  single  year. 

In  August,  1861,  after  an  interval  of  forty-five  years, 
another  direct  tax  was  levied.  This  was  in  consequence 
of  the  war  of  the  rebellion.  The  act  required  that 
twenty  millions  of  dollars  a  year  be  levied  on  all  lots 
of  ground  with  their  improvements  and  dwelling- 
houses.  The  amount  was  apportioned  among  the  States 
and  Territories  and  the  District  of  Columbia,  according 
to  their  population,  as  required  by  the  Constitution.1 
The  law  provided  that  any  State  or  Territory  might 
collect  its  quota,  and  be  allowed  fifteen  per  cent,  of  the 
amount  for  the  expense  of  collection.  All  the  kmil 
States  and  Territories,  except  Delaware  and  Colorado, 
assumed  the  payment  of  the  tax.2  This  law,  like  the 
others  of  an  earlier  period,  was  in  force  but  one  year. 
By  act  of  July  1st,  1862,  its  operation  was  suspended, 
save  as  to  the  collection  of  the  first  annual  tax,  until 
April  1st,  1865.3  By  act  of  June  30th,  1864,  it  was  again 
suspended  till  Congress  should  take  further  action.4 

The  second  act  passed  by  Congress  after  the  adoption 
of  the  Constitution  was,  "for  laying  a  duty  on  goods, 
wares,  and  merchandises  imported  into  the  United 
States."  All  civilized  nations  adopt  this  as  one  of  the 
methods  of  raising  revenue.  Whatever  may  be  their 
theoretical  notions  as  to  free  trade,  none  hesitate  to  lay 
duties  on  a  portion  of  the  merchandise  which  they  im 
port.  There  is  great  diversity  of  opinion  as  to  the 
article*  upon  which  duties  shall  be  levied;  whether  it 
is  or  is  not  expedient  to  impose  duties  upon  those  which 
would  come  into  competition  with  the  products  of  the 
country  itself.  It  is  worthy  of  notice  that  the  act 
alluded  to  above,  which  was  passed  July  4th,  1789,  had 

1  The  Territories  had  not  been  named  in  any  previous  act  imposing 
direct  taxes;  nor  the  District  of  Columbia,  prior  to  1815. 

2  Report  of  Commissioner  of  Internal  Revenue  for  1870,  p.  14. 

3  Statutes  at  Large,  XII,  489.  4  Ibid,  XIII,  304. 


84  THE  CONSTITUTION.  1.  VIII.  1. 

a  preamble,  as  follows:  " Whereas  it  is  necessary  for 
the  support  of  government,  for  the  discharge  of  the 
debts  of  the  United  States,  and  the  encouragement  and 
protection  of  manufactures,  that  duties  be  laid  on 
goods,  wares,  and  merchandises  imported:  Be  it  en 
acted,"  etc. 

We  have  seen  that  until  1861  direct  taxes  had  been 
levied  for  only  four  years  since  the  adoption  of  the 
Constitution;  but  duties  on  goods  imported  have  been 
collected  from  the  first,  and  have  formed  until  recently 
the  chief  source  of  revenue.  The  term  excises,  though 
used  in  the  Constitution,  does  not  appear  in  the  laws 
enacted  by  Congress.  As  commonly  used,  it  signifies 
all  indirect  taxes  except  duties  on  imports  and  exports. 
In  a  narrower  meaning,  it  is  a  tax  upon  the  production  of 
commodities.  Thus,  distillers  pay  a  tax  of  so  much  a 
gallon  on  the  whisky  they  manufacture,  and  oil  refiners 
have  paid  a  similar  tax. 

The  first  case  of  indirect  taxation,  other  than  duties 
on  imports,  was  that  of  a  duty  on  spirits  distilled  within 
the  United  States,  by  an  act  of  Congress,  March  3d,  1791. 
The  duty  ranged  from  nine  cents  a  gallon  to  twenty- 
five,  according  to  its  percentage  below  or  above  proof. 
On  the  stills  employed,  there  was  al«o  a  yearly  duty  of 
sixty  cents  for  every  gallon  of  their  capacity.  In  1794, 
duties  were  levied  upon  carriages,  and  retail  dealers  in 
wines,  etc.,  were  required  to  pay  five  dollars  a  year  for 
license.  A  duty  of  eight  cents  a  pound  was  also  levied 
upon  snuff  manufactured  in  the  United  States,  aad  one 
of  two  cents  a  pound  on  sugar  refined.  About  the  same 
time  duties  were  laid  on  auction  sales;  and  in  1797 
stamp  duties  were  imposed  on  certain  certificates,  letters 
patent,  insurance  policies,  bills  of  exchange,  promissory 
notes,  etc.,  etc.  Thus  a  system  of  internal  revenue  was 
brought  into  full  operation  during  the  last  century, 
having  been  commenced  very  soon  after  the  adoption 
of  the  Constitution. 


1.  VIII.  1.  INTERNAL    TAXES.  85 

In  April,  1802,  an  "Act  to  repeal  the  Internal  Taxes," 
swept  away  "the  internal  duties  on  stills  and  do 
mestic  distilled  spirits,  licenses  to  retailers,  sales  at 
auction,  carriages  for  the  conveyance  of  persons,  and 
stamped  vellum,  parchment,  and  paper."  But  in  1813, 
these  were  restored,  and  the  office  of  Commissioner  o\\ 
the  Revenue  was  established,  "for  superintending  the 
collection  of  the  direct  tax  and  internal  duties."  In 
1815,  the  list  of  manufactured  articles  on  which  in 
ternal  duties  were  levied  was  largely  increased,  and 
taxes  imposed  also  upon  household  furniture  and  gold 
and  silver  watches. 

All  these  taxes — they  are  called  duties  in  the  statutes 
of  the  United  States — were  required  to  be  uniform  by 
the  Constitution.  Thus,  if  upon  a  promissory  note  for 
a  given  sum  a  certain  duty  was  levied  in  one  State,  the 
same  duty  must  be  paid  upon  a  note  of  the  same  amount 
in  every  other  State.  If  the  owner  of  one  gold  watch 
was  required  to  pay  a  tax  of  one  dollar,  every  one  own 
ing  a  gold  watch  must  pay  a  like  sum.  But  direct  taxes 
must  be  in  proportion  to  the  population  of  the  State. 
If  two  States  are  equal  in  population,  their  citizens 
must  pay  to  the  general  government  the  same  aggre 
gate  amount  of  direct  taxes,  though  the  citizens  of  one 
State  may  possess  twice  as  much  property  as  those  of 
the  other. 

The  act  of  Congress  of  August  5th,  1861,  which  levied 
a  direct  tax  on  the  States  and  Territories,  provided, 
also,  for  an  income  tax,  believed  to  be  the  first  ever 
levied  by  our  general  government.  The  tax  was  three 
per  cent  per  annum  on  the  excess  of  income  over  eight 
hundred  dollars.  In  July,  1862,  it  was  changed  to 
three  per  cent  on  the  excess  of  income  over  six  hun 
dred  dollars ;  but  five  per  cent  on  the  excess  over  ten 
thousand.  For  the  years  1870  and  1871,  it  wa*s  two  and 
a  half  per  cent  on  the  excess  of  income  over  two  thou 
sand  dollars.  No  income  tax  has  been  levied  since  that 


THE  CONSTITUTION.  1.  VIII.  2. 

for  1871.  The  amount  collected  on  this  tax  in  1865, 
was  $20,000,000;  in  1866,  $61,000,000;  in  1867,  $57,000,000; 
in  1868,  $32,000,000. 

On  the  first  of  July,  1862,  an  act  to  provide  internal 
revenue  was  passed  by  Congress,  which  is  by  far  the 
most  elaborate  and  comprehensive  scheme  of  internal 
taxation  in  the  history  of  our  government.  It  included 
duties  on  a  great  variety  of  manufactured  articles,  licenses 
for  carrying  on  divers  trades  and  occupations,  duties  on 
carriages,  yachts,  billiard  tables,  and  plate;  on  banks, 
trust  and  insurance  companies,  railroads,  steamboats, 
ferry-boats,  railroad  bonds,  stamps,  etc.,  etc. 

The  income  to  the  government  from  internal  revenue 
from  1791  to  1849  was  about  $22,000,000;  ranging  from 
about  $200  in  1843,  to  $5,124,708  in  1816.  During  the 
same  period  the  income  from  customs  was  about 
$946,000,000.  But  in  the  year  1866  the  income  from  in 
ternal  revenue  was  over  $H09,000,000,  that  from  customs 
being  about  $179,000,000.  For  the  year  ending  June  30, 
1877,  the  receipts  from  customs  were  about  $131,000,000, 
and  those  from  internal  revenue  $118,000,000. 

Clause  2. — To  borrow  money  on  the  credit  of  the  United 

States. 

In  time  of  peace,  the  ordinary  revenues  of  a  nation 
should  be  sufficient  to  pay  the  expenses  of  its  govern 
ment;  but  in  time  of  war  these  will  be  insufficient, 
and  debts  must  be  incurred.  All  nations  possess  this 
power  of  borrowing  money,  and  all  have  exercised  it. 
The  usual  mode  of  making  loans  is  to  issue  the  bonds 
of  the  government,  which  are  its  promises  to  pay  tho 
sums  specified,  at  a  given  time,  and  with  interest  at 
given  rates,  usually  payable  semi-annually.  These 
bonds  are  then  sold  at  the  best  rates  the  government 
can  command. 

The  United  States  have  issued  bonds  from  time  to 
time  since  the  formation  of  the  government;  though 


1.  VIII.  2.  POWER  TO  BORROW  MONEY.  87 

these  were  in  possession  of  the  capitalists  almost  ex 
clusively,  until  the  war  of  the  rebellion  made  large 
loans  necessary.  Then  efforts  were  made  to  circulate 
them  among  the  people,  and  with  such  success  that 
multitudes  purchased  United  States  bonds  who  had 
never  before  seen  securities  of  this  character.  The 
issues  were  of  various  denominations,  $50,  $100,  $500, 
$1,000,  and  so  on. 

There  have  been  three  classes  of  loans  which  have 
been  widely  circulated  among  the  people,  viz.,  those 
known  as  seven-thirties,  ten-forties,  and  five-twenties.  The 
first  were  called  treasury  notes,  and  both  principal  and 
interest  were  payable  in  currency.  The  interest  was 
at  the  rate  of  seven  and  thirty-hundredths  per  cent 
per  annum,  which  gave  them  their  name,  seven-thirties. 
This  rate  gives  the  interest  one  cent  a  day  on  a  note 
of  $50,  two  cents  on  one  of  $100,  etc.,  rendering  it  easy 
of  computation.  The  five-twenties  are  payable,  principal 
and  interest,  in  coin,  and  the  name,  five-twenties,  comes 
from  the  time  of  payment ;  the  government  may  pay 
at  any  time  after  five  years  from  their  date,  though  they 
are  not  due  till  the  expiration  of  twenty  years.  The 
interest  is  at  the  rate  of  six  per  cent  per  annum.  The 
ten-forties  may  be  paid,  in  like  manner,  after  ten  years, 
and  are  due  at  the  end  of  forty  years:  interest  five  per 
cent  per  annum. 

The  bonds  of  the  United  States  can  not  be  taxed  b}' 
the  State  governments,  according  to  a  decision  of  the 
Supreme  Court,  even  if  the  bonds  themselves  contain 
no  stipulation  to  that  effect. 

The  public  debt  of  the  United  States,  on  the  first  of 
January,  1791,  was  about  $75,000,000.  In  1816,  it  was 
over  $127,000,000,  which  within  about  twenty  years  was 
entirely  paid.  In  1861,  the  debt  was  $90,000,000,  and 
in  1866,  it  was  $2,773,000,000.  On  the  first  of  July, 
1877,  it  was  $2,060,000,000.  The  advantages  of  this 
method  of  distributing  the  payment  of  a  debt  over  a 


THE   CONSTITUTION.  1.  VIII.  3. 

period  of  years  are  obvious.  The  country  is  every  year 
becoming  richer,  and  thus  more  able  to  pay  off  its  in 
debtedness.  What  would  have  been  an  insupportable 
burden  at  the  creation  of  the  debt,  becomes,  in  the  lapse 
of  years,  tolerable  and  easy.  At  the  same  time,  the 
temptation  to  postpone  unduly  the  payment  of  princi 
pal  should  be  steadily  resisted.  The  ordinary  expenses 
of  the  government  will  always  call  for  heavy  taxes, 
without  adding  to  them  interest  on  debts. 

The  act  of  1870,  and  subsequent  acts,  authorized  the 
issue  of  bonds  for  $1,500,000,000  at  five,  four  and  a  half, 
and  four  per  cent  interest,  payable  principal  and  inter 
est  in  coin,  and  redeemable  at  the  pleasure  of  the  Gov 
ernment  after  ten,  fifteen,  and  thirty  years  respect 
ively  ;  to  be  sold  at  not  less  than  par,  and  the  pro 
ceeds  to  be  applied  to  redeem  the  five-twenties.  Over 
$700,000,000  of  six  per  cent  bonds  have  already  (Janu 
ary,  1878)  been  thus  redeemed,  reducing  the  annual 
interest  over  $8,500,000. 

A  portion  of  our  present  public  debt  is  in  the  form 
of  Treasury  Notes,  commonly  called  legal  tenders, 
which  are  circulated  as  money,  and  on  which  the  Gov 
ernment  pays  no  interest.  The  power  to  issue  these 
comes  from  this  clause  (to  borrow  money)  but  it  will 
be  more  convenient  to  consider  them  under  another 
clause. 

Clause  3. —  To  regulate  commerce  with  foreign  nations, 
and  among  the  several  States,  and  with  the  Indian  tribes. 

Prior  to  the  adoption  of  the  Constitution  the  power 
to  regulate  commerce  was  not  in  Congress,  but  in  the 
several  States.  Each  State  made  such  regulations  as 
its  own  interests  seemed  to  require,  without  regard  to 
the  influence  upon  its  neighbors.  "  The  States  through 
whose  ports  the  natural  or  artificial  channels  of  trade 
principally  passed,  were  able  to  exact  a  revenue  from 
those  which  were  less  favorably  situated  for  commercial 


1.  VIII.  3.     POWER   TO    REGULATE    COMMERCE.  89 

purposes."  It  was  on  account  of  the  difficulties  and 
irritations  growing  out  of  these  commercial  regulations 
that  a  Convention  of  Commissioners  from  various  States 
was  held  at  Annapolis  in  September,  1786;  which  Con 
vention  recommended  the  one  that  framed  the  present 
Constitution  in  the  year  1787. 

As  appears  from  this  third  clause,  the  whole  control 
of  the  subject  of  commerce,  both  with  foreign  nations, 
among  the  several  States,  and  with  the  Indian  tribes, 
is  placed  by  the  Constitution  not  with  the  States  but 
with  the  general  government.  Under  the  Articles  of 
Confederation  each  State  levied  duties  on  imports  and 
exports  as  it  pleased,  and  this,  not  only  as  regarded 
foreign  countries,  but  with  reference  to  commerce  be 
tween  contiguous  States.  But  now  there  can  be  no  re 
strictions  on  trade  between  two  States,  and  all  duties 
on  goods  imported  from  other  countries  must  be  "uni 
form."  The  nation  has  the  exclusive  power  over  com 
merce,  and  without  this  it  would  hardly  deserve  the 
name  of  a  nation. 

"To  regulate"  commerce  is  to  prescribe  rules  by 
which  it  is  to  be  carried  on.  "With  foreign  nations" 
means  with  the  people  of  those  nations.  The  general 
government,  and  not  the  States,  prescribes  the  rules 
of  commercial  intercourse  between  the  people  of  the 
United  States  and  those  of  foreign  countries,  and  be 
tween  the  people  of  any  one  State  and  those  of  all  the 
other  States.  So  also  trade  with  the  Indian  tribes  is 
under  the  exclusive  control  of  Congress. 

"In  the  practice  of  the  government,  the  commercial 
power  has  been  applied  to  embargoes,  non-intercourse, 
non-importation,  coasting-trade,  fisheries,  navigation, 
seamen,  privileges  of  American  and  foreign  ships,  quar 
antine,  pilotage,  wrecks,  light-houses,  buoys,  beacons; 
obstructions  in  bays,  sounds,  rivers,  and  creeks;  inroads 
of  the  oceans,  and  many  other  kindred  subjects;  and, 
doubtless,  includes  salvage,  policies  of  insurance,  bills 
C.  G.  8. 


90  THE  CONSTITUTION.  1.  VIII.  3. 

of  exchange,  and  all  maritime  contracts,  and  the  desig 
nation  of  ports  of  entry  and  delivery. 

"  Wherever  the  power  of  Congress  extends,  they  are 
the  exclusive  judges  of  the  proper  reasons  and  motives 
for  exercising  it,  and  are  not  to  be  controlled  by  any  alle 
gation  that  it  was  done  for  a  purpose  not  contemplated 
in  the  original  grant.  This  commercial  power  has  been 
employed  for  the  purposes  of  prohibition,  reciprocity, 
retaliation,  and  revenue  —  sometimes,  also,  to  encourage 
domestic  navigation  and  manufactures,  by  bounties,  dis 
criminating  duties,  and  special  privileges  and  prefer 
ences,  and  to  regulate  intercourse,  with  a  view  to  mere 
political  objects;  and  the  right  to  do  so  has  been  sus 
tained  by  the  unequivocal  voice  of  the  nation.'71 

In  December,  1807,  under  the  administration  of  Mr. 
Jefferson,  an  embargo  act  was  passed.  It  provided 
"That  an  embargo  be  laid  on  all  ships  and  vessels  in 
the  ports  and  places  within  the  limits  or  jurisdiction  of 
the  United  States,  cleared  or  not  cleared,  bound  to  any 
foreign  port  or  place;  and  that  no  clearance  be  fur 
nished  to  any  ship  or  vessel  bound  to  such  foreign  port 
or  place,  except  vessels  under  the  immediate  direction 
of  the  President  of  the  United  States/' 2 

Under  the  power  "to  regulate  commerce,"  Congress 
thus  passed  a  law  prohibiting  every  American  merchant 
vessel  from  leaving  port;  and  this,  not  for  a  limited 
period,  but  without  limitation  of  time.  It  was  re 
pealed,  however,  in  March,  1809,  the  act  going  into 
effect  in  June  of  the  same  year.  An  act  to  prohibit 
the  importation  of  certain  goods  from  Great  Britain 
and  her  colonies  was  passed  in  April,  1806;  and  one 
to  interdict  the  commercial  intercourse  between  the 
United  States  and  Great  Britain  arid  France  was  passed 
in  March,  1809. 

For  the  fiscal  year  ending  June  30th,  1877,  the  total 


lFarrar,  p.  328.         2U.  S.  Statutes,  II,  p.  451. 


1.  VIII.  4.  NATURALIZATION.  91 

value    of    exports    was    $602,475,220,    and    of    imports 
$451,323,126. 

The  power  to  regulate  commerce  with  the  Indian 
tribes  is  given  to  Congress.  The  exclusive  right  of 
pre-emption  to  the  Indian  lands  is  with  Congress,  and 
neither  States  nor  individuals  can  purchase  lands  from 
the  Indians.  An  Indian  tribe  is  not  a  foreign  nation, 
but  a  people  in  a  condition  of  dependence  or  pupilage, 
sustaining  to  the  United  States  the  relation  of  a  ward 
to  a  guardian. 

Clause  4. — To  establish  a  uniform  rule  of  naturaliza 
tion,  and  uniform  laws  on  the  subject  of  bankruptcies 
throughout  the  United  States. 

Naturalization  is  the  conferring  of  citizenship.  By  it 
an  alien,  or  foreigner,  is  made  a  citizen.  Neither  the 
Constitution  nor  any  act  of  Congress  defines  citizenship. 
The  Fourteenth  Amendment  declares  who  are  citizens, 
but  gives  no  definition  of  the  term.  "All  persons  born 
or  naturalized  in  the  United  States,  and  subject  to  the 
jurisdiction  thereof,  are  citizens  of  the  United  States, 
and  of  the  States  wherein  they  reside."  "  Citizens, 
under  our  Constitution  and  laws,  means  free  inhab 
itants  born  within  the  United  States,  or  naturalized 
under  the  laws  of  Congress."  (Kent.)  "A  citizen  is 
a  member  of  the  body  politic,  bound  to  allegiance  on 
the  one  side,  and  entitled  to  protection  on  the  other." 
(Attorney-General  Bates.) 

Citizens  are  either  native-born,  or  naturalized.  Every 
person  born  in  the  country  is,  at  the  moment  of  birth, 
prima  facie  a  citizen.  An  alien  can  become  a  citizen 
only  by  compliance  with  the  rule  of  naturalization 
prescribed  by  Congress. 

On  the  twenty-fourth  day  of  June,  1776,  the  Conti 
nental  Congress  resolved,  "That  all  persons  abiding  in 
any  of  the  United  Colonies,  and  deriving  protection  from 
the  laws  of  the  same,  owe  allegiance  to  the  said  laws, 


92  THE   CONSTITUTION.  1.  VIII.  4. 

and  are  members  of  such  Colony."  This  resolution  was 
passed  after  the  Resolution  of  Independence  had  been 
decided  upon  in  Committee  of  the  Whole.  This  is  sup 
posed  to  have  been  the  law  until  March,  1781,  when 
the  Articles  of  Confederation  went  into  effect,  in  which 
jurisdiction  over  the  subject  was  left  to  the  individual 
States.  The  objections  to  giving  each  State  the  power 
to  frame  naturalization  laws  for  itself  are  obvious.  One 
State  might  confer  the  rights  of  citizenship  after  a  resi 
dence  of  one  year,  another  after  two  years,  and  another 
after  ten;  yet  the  Constitution  provides  that,  "the 
citizens  of  each  State  shall  be  entitled  to  all  privileges 
and  immunities  of  citizens  in  the  several  States." 
There  was  no  difference  of  opinion  in  the  Convention 
as  to  the  propriety  of  giving  to  Congress  the  exclusive 
control  of  the  matter. 

In  1790,  Congress  passed  an  act  requiring  two  years' 
residence  before  a  foreigner  could  become  a  citizen.  In 
1795,  the  time  was  extended  to  five  years,  and  in  1798, 
it  was  extended 'to  fourteen  years.  But  in  1802,  it  was 
reduced  to  five  years,  which  is  the  time  now  required. 

The  mode  of  naturalization  requires,  first,  that  the 
alien  shall  make,  at  least  two  years  before  his  admis 
sion — it  was  three  years  by  the  act  of  1802,  but  changed 
to  two  in  1824— a  declaration,  on  oath,  of  his  purpose 
to  become  a  citizen  of  the  United  States,  and  to  re 
nounce  all  allegiance  to  any  foreign  prince  or  state ; 
secondly,  that  when  he  applies  for  admission  he  shall 
declare,  on  oath,  that  he  will  support  the  Constitution 
of  the  United  States,  and  doth  renounce  all  allegiance 
to  any  foreign  prince  or  state;  thirdly,  that  the  court 
admitting  him  shall  be  satisfied  that  he  has  resided  five 
years  within  the  United  States,  and  one  year  in  the 
State  or  Territory  where  the  court  is  held,  and  that  he 
^as  behaved  as  a  man  of  good  moral  character. 

The  children  of  persons  duly  naturalized,  who  were 
under  twenty-one  at  the  date  of  such  naturalization, 


1.  VIII.  4.  NATURALIZATION.  93 

shall  be  considered  citizens,  if  residing  in  the  United 
States. 

An  alien,  coming  to  this  country  when  a  minor,  who 
shall  have  resided  in  the  United  States  three  years 
next  preceding  his  arriving  at  the  age  of  twenty-one, 
and  who  shall  have  continued  to  reside  therein  to  the 
time  of  his  application,  may,  after  he  arrives  at  the 
age  of  twenty-one,  and  after  he  shall  have  resided  five 
years,  in  the  United  States,  be  admitted  a  citizen  with 
out  the  previous  declaration.  A  woman  who  might 
lawfully  be  naturalized  under  the  existing  laws,  mar 
ried  to  a  citizen,  shall  be  deemed  a  citizen.1 

The  children  of  citizens  of  the  United  States  shall 
be  considered  citizens,  though  born  abroad. 

If  an  alien  who  has  made  his  declaration  of  intention 
to  become  a  citizen  die  before  he  is  actually  naturalized, 
his  widow  and  children  shall  be  considered  as  citizens 
upon  taking  the  oaths  prescribed  by  law. 

No  alien,  who  shall  be  a  native  citizen  or  subject  of 
any  country  with  which  the  United  States  shall  be  at 
war  at  the  time  of  his  application,  shall  be  then  ad 
mitted  to  citizenship. 

By  act  of  July  17th,  1862,  a  soldier  of  the  age  of 
twenty-one  years  and  upward,  regularly  discharged 
from  the  army  of  the  United  States,  may  be  admitted 
to  citizenship  without  a  previous  declaration  of  inten 
tion,  and  with  a  single  year's  residence. 

The  admission  to  citizenship  of  those  who  have  been 
subjects  of  other  governments,  implies  the  right  of  ex 
patriation.  This  right  has  been  denied  by  some  of  the 
European  states,  and  the  claim  maintained  that  Amer 
ican  naturalized  citizens  still  owe  allegiance  to  the 
countries  where  they  formerly  resided.  In  July,  1868, 
an  act  of  Congress  was  passed,  expressly  declaring  the 
right  of  expatriation,  and  that  "All  naturalized  citizens 


1  U.  S.  Statutes,  X,  604. 


94  THE  CONSTITUTION.  1.  VIII.  4. 

of  the  United  States,  while  in  foreign  states,  shall  be 
entitled  to,  and  shall  receive  from  this  government,  the 
same  protection  of  persons  and  property  that  is  accorded 
to  native-born  citizens  in  like  situations  and  circum 
stances." 

Within  a  few  years  treaties  have  been  made  by  the 
United  States  with  a  number  of  other  nations,  in  which 
provision  is  made  for  the  mutual  naturalization  of 
citizens,  thus  recognizing  the  right  of  expatriation. 
A  treaty  of  this  kind  was  made  with  Prussia  and 
Bavaria  in  1868,  with  Belgium  and  Hesse  in  1869, 
with  Great  Britain  and  Wurtemburg  and  Baden  in 
1870,  with  Austria  in  1871.  and  with  Sweden  and  Nor 
way  in  1872. 

Though  the  Constitution  gives  to  Congress  the  whole 
control  of  the  subject  of  naturalization,  with  no  limita 
tion  as  to  those  who  might  be  admitted  to  citizenship, 
every  law  enacted,  from  1790  to  1870,  restricted  it  to 
whites.  By  act  of  July  14th,  1870,  it  was  provided : 
"That  the  naturalization  laws  are  hereby  extended  to 
aliens  of  African  nativity,  and  to  persons  of  African 
descent."  As  the  original  statute  limited  naturalization 
to  white  aliens,  and  the  act  of  1870  extended  it  to  those 
of  African  descent,  the  question  has  arisen  whether  the 
Chinese  may  be  naturalized  under  the  present  law.  In 
April,  1878,  Judge  Sawyer  of  the  United  States  Circuit 
Court  decided  this  adversely,  holding  that  Chinamen 
are  not  "white11  in  the  meaning  of  the  statute. 

Mr.  Curtis,  in  his  History  of  the  Constitution,  says, 
"the  power  that  was  given,  by  unanimous  consent, 
over  the  subject  of  naturalization,  shows  the  strong 
purpose  that  was  entertained  of  vesting  in  the  national 
authority  an  efficient  practical  control  over  the  States, 
in  respect  to  the  political  rights  to  be  conceded  to  per 
sons  not  natives  of  the  country."  In  a  note  he  says :  "  I 
have  called  the  naturalization  power  a  practical  control 
upon  the  States  in  the  matter  of  suffrage.  It  is  indi- 


1.  VIII.  4.  NATURALIZATION.  95 

rect,  but  it  is  effectual ;  for  I  believe  that  no  State  has 
ever  gone  so  far  as,  by  express  statutory  or  constitu 
tional  provision,  to  admit  to  the  right  of  voting  persons 
of  foreign  birth  who  are  not  naturalized  citizens  of  the 
United  States."1  Mr.  Curtis  is,  doubtless,  right  in  his 
opinion  that  an  alien  ought  not  to  be  allowed  to  vote; 
but  he  is  wrong  in  the  statement  that  no  State  has  ex 
tended  the  right  of  voting  to  persons  of  foreign  birth 
not  naturalized.  In  a  number  of  the  States  this  right 
is  enjoyed,  as  in  Indiana,  Michigan,  and  Wisconsin. 
The  Constitution  of  Indiana  permits  an  alien  to  vote 
who  has  been  one  year  in  the  United  States  and  six 
months  in  Indiana,  and  who  has  declared  his  pur 
pose  to  become  a  citizen  of  the  United  States.  The 
new  Constitution  of  Illinois  restricts  suffrage  to  citizens 
of  the  United  States. 

By  the  common  law,  an  alien  could  not  hold  real 
estate;  and  in  some  of  the  States  a  special  act  of  the 
legislature  is  necessary  to  enable  an  alien  to  hold  such 
property.  But  other  States  have  provided  by  statute 
that  no  difference  in  this  respect  shall  exist  between 
an  alien  and  a  citizen. 

Naturalization  removes  the  disabilities  of  alienage, 
and  confers,  with  one  or  two  exceptions,  all  the  rights 
and  privileges  pertaining  to  the  native-born  citizen. 
A  naturalized  citizen  can  not  hold  the  office  of  Presi 
dent  or  Vice-President  of  the  United  States,  nor  can  he 
be  a  Representative  or  Senator  in  Congress  till  he  has 
been  a  citizen  for  a  term  of  years. 

While  this  clause  of  the  Constitution  authorizes  Con 
gress  to  "establish  a  uniform  rule  of  naturalization," 
and  such  a  rule  has  been  established,  Congress  has  ex 
ercised  the  power  of  granting  naturalization  without 
regard  to  the  rule.  Foreign  territory  has  repeatedly 
been  incorporated  into  the  Union  by  treaty  and  other- 


History  of  the  Constitution,  II,  p.  202. 


96  THE  CONSTITUTION.  1.  VIII.  4. 

wise,  and  the  inhabitants,  of  whatever  race  or  descrip 
tion,  clothed  with  the  rights  of  citizenship.  The 
President  and  Senate  have  thus  naturalized  whole 
communities,  without  reference  to  the  sections  of  the 
act  prescribing  the  mode  of  naturalization.  So  Texas, 
with  all  its  people,  was  admitted  into  the  Union  by 
joint  resolution  of  Congress.  As  the  general  govern 
ment  has  thus  naturalized  whole  masses  of  people  with 
out  any  specific  authority,  the  grant  to  establish  a 
uniform  rule  has  not  been  considered  as  exhausting  the 
power  of  Congress  over  the  subject. 

In  1870,  Congress  passed  a  stringent  law  to  punish 
crimes  against  the  naturalization  laws.  Great  frauds 
had  been  committed  in  some  of  the  cities  in  the  issue 
of  naturalization  papers,  thus  leading  to  the  casting  of 
many  fraudulent  votes. 

Bankruptcy.  —  According  to  English  usage,  the  term 
bankrupt  was  limited  to  traders  who  could  not  or  would 
not  pay  their  debts,  while  the  word  insolvent  was  ap 
plied  to  persons  not  engaged  in  trade.  This  distinction 
was  recognized  in  the  first  law  passed  by  Congress  on 
the  subject,  April  4th,  1800.  It  refers  to  "  merchants, 
bankers,  brokers,  underwriters,"  etc.  But  the  law  of 
August  19th,  1841,  makes  no  such  limitations,  but  re 
fers  to  liall  persons  owing  debts."  The  same  is  true 
of  the  recent  law,  passed  March  2d,  1867.  Its  lan 
guage  is,  "  If  any  person  owing  debts,"  etc. 

The  popular  usage  in  the  United  States  makes  the 
words  bankrupt  and  insolvent  synonymous,  and  applies 
them  to  persons  not  engaged  in  trade  as  well  as  to 
traders.  Strictly,  a  person  is  insolvent  who  is  not  able  to 
pay  his  debts.  He  becomes  a  bankrupt  when,  on  his 
own  petition,  or  the  petition  of  one  or  more  of  his  cred 
itors,  he  is  declared  to  be  such  by  the  proper  law  officer, 
called  a  Register  in  Bankruptcy.  Insolvency  thus  nat 
urally  precedes  bankruptcy.  A  man  seeks  to  avail 


1.  VIII.  4. 


BANKRUPTCY.  97 


himself  of  the  bankrupt  act  because  he  is  insolvent, 
and  many  are  insolvent  who  are  never  adjudged  bank 
rupts. 

The  Constitution  gives  to  Congress  the  power  to  pass 
uniform  laws  on  the  subject.  Prior  to  the  adoption 
of  the  Constitution  the  power  was  exercised  by  the 
several  States.  Three  bankrupt  laws  have  been  en 
acted  by  Congress :  the  first,  April  4th,  1800,  repealed 
December  19th,  1803;  the  second,  August  19th,  1841, 
repealed  March  3d,  1843;  the  third,  March  2d,  1867, 
and  repealed  in  April,  1878,  to  take  effect  September 
1st.  Thus  bankrupt  laws  have  been  in  force  only  six 
teen  years  in  about  ninety. 

Some  of  the  States  have  had  laws  in  regard  to  in 
solvency,  which  have  been  for  the  relief  of  unfortunate 
debtors.  It  has  been  held  that  the  States  might  pass 
laws  on  the  subject,  provided  they  did  not  contravene 
the  Constitution  of  the  United  States,  or  the  provis 
ions  of  any  law  of  Congress  in  force  at  the  time.  A 
State  might  thus  pass  laws  releasing  the  person  of 
the  debtor  from  imprisonment;  or  releasing  property 
which  he  might  acquire  from  debts  which  he  should 
contract  after  the  passage  of  the  law.  But  a  State 
could  not  release  a  debtor  from  debts  already  incurred, 
nor  could  it  pass  laws  affecting  the  citizens  of  other 
States.  Congress,  however,  is  subject  to  no  such  lim 
itation.  While  the  Constitution  prohibits  States  from 
passing  laws  which  impair  the  obligation  of  contracts, 
there  is  no  such  prohibition  on  Congress. 

It  has  been  said  that  a  bankrupt  law  is  intended 
primarily  as  a  remedy  for  the  benefit  of  creditors; 
while  an  insolvent  law  is  for  the  benefit  of  the  debtors. 
The  word  bankrupt  formerly  carried  with  it  the  sense 
of  an  offender.  Thus  the  law  of  1800  refers  only  to 
involuntary  bankruptcy;  the  creditors  petitioning  that 
the  debtor  may  be  declared  a  bankrupt,  and  his  prop 
erty  be  divided  among  his  creditors.  The  idea  of  fraud 
C.  G.  9. 


98  THE  CONSTITUTION.  1.  VIII.  4. 

on  the  debtor's  part  is  implied  in  the  wording  of  the 
statute,  and,  as  before  said,  that  law  applies  only  to 
traders. 

The  law  of  1841  provides  for  voluntary  as  well  as  in 
voluntary  bankruptcy,  and  the  provisions  are  appli 
cable  to  any  person  owing  debts  which  he  is  unable 
to  pay.  The  same  is  true  of  the  recent  law.  Most  of 
its  provisions  refer  to  voluntary  bankruptcy. 

In  all  the  laws  an  allowance  is  made  to  the  debtor 
who  is  adjudged  a  bankrupt.  In  the  law  of  1800  the 
amount  depended  upon  the  proportion  of  his  debts 
which  he  was  able  to  pay.  If  this  was  less  than  fifty 
per  cent,  the  allowance  could  not  exceed  three  hun 
dred  dollars  and  wearing  apparel.  If  fifty  per  cent  of 
his  debts  could  be  paid,  he  was  allowed  five  per  cent, 
but  the  allowance  could  not  exceed  five  hundred  dol 
lars.  If  seventy-five  per  cent  of  debts  was  paid,  he 
was  allowed  ten  per  cent,  provided  the  allowance  did 
not  exceed  eight  hundred  dollars.  The  law  of  1841 
exempted  furniture  and  other  necessary  articles  not  to 
exceed  three  hundred  dollars,  also  the  wearing  apparel 
of  the  bankrupt  and  his  family.  The  law  of  1867 
makes  the  limit  five  hundred  dollars,  and  such  other 
property  as  may  be  exempted  from  sale  or  execution 
by  the  laws  of  the  State  or  of  the  United  States. 

The  bankrupt,  after  the  various  requirements  of  the 
law  have  been  complied  with,  receives  a  "  discharge  " 
from  his  debts.  The  three  laws  differ  somewhat  as  to 
the  influence  which  the  creditors  may  exert  to  prevent 
this  discharge  of  the  bankrupt  from  his  debts. 

The  law  of  1800  required  that  two-thirds  of  the 
creditors  —  including  both  the  number  of  the  creditors 
and  the  value  of  their  claims  —  should  give  their 
assent.  The  law  of  1841  provided  that  a  discharge 
should  be  given  unless  a  majority  of  the  creditors  in 
number  and  value  should  dissent  therefrom  in  writing. 
That  of  1867  provided  that  "  no  discharge  shall  be 


1.  VIII.  4.  BANKRUPTCY.  99 

granted  to  a  debtor  whose  assets  shall  not  be  equal 
to  fifty  per  cent  of  the  claims  proved  against  his 
estate  upon  which  he  shall  be  liable  as  the  principal 
debtor,  unless  the  assent  in  writing  of  a  majority  in 
number  and  value  of  his  creditors"  be  given.  It  pro 
vides  also  that  any  creditor  opposing  the  discharge 
may  present  to  the  court  the  grounds  of  his  opposition, 
but  the  court  shall  decide. 

It  is  to  be  feared  that  debtors,  in  our  country,  are 
released  too  easily  from  their  obligations.  "In  England, 
bankruptcy  is  a  more  serious  matter.  The  bankrupt 
not  only  loses  credit;  he  also,  to  a  great  extent,  loses 
caste.  *  *  In  France,  the  lot  of  the  bankrupt  is  still 
more  severe ;  not  only  does  he  lose  his  social  position, 
but  the  law  prevents  him  from  engaging  in  any  other 
business  on  his  own  account  till  he  has  redeemed  his 
outstanding  obligations."1 

But  even  the  English  laws  are  far  too  lenient,  accord 
ing  to  the  opinion  of  an  eminent  writer.  "It  is  seldom 
difficult  for  a  dishonest  debtor,  by  an  understanding 
with  one  or  more  of  his  creditors,  or  by  means  .of  pre 
tended  creditors  set  up  for  the  purpose,  to  abstract  a 
part,  perhaps  the  greatest  part,  of  his  assets  from  the 
general  fund  through  the  forms  of  the  law  itself. 
*  *  *  To  have  been  trusted  with  money  or  money's 
worth,  and  to  have  lost  or  spent  it,  is  prima  facie  evi 
dence  of  something  wrong,  and  it  is  not  for  the  cred 
itor  to  prove,  which  he  can  not  do  in  one  case  out  of 
ten,  that  there  has  been  criminality, -but  for  the  debtor 
to  rebut  the  presumption  by  laying  open  the  whole 
state  of  his  affairs,  and  showing  either  that  there  has 
been  no  misconduct,  or  that  the  misconduct  has  been 
of  an  excusable  kind."2 

The   distinction    between   a   legal    obligation   and   a 


1  Bo  wen's  American  Political  Economy,  p.  211. 

2  Mill's  Political  Economy,  IT,  pp.  473,  476. 


100  THE  CONSTITUTION.  I.  VIII.  5. 

moral  one  must  not  be  overlooked.  The  law  may  dis- 
eharge  the  bankrupt  from  his  debts,  but  there  still 
rests  upon  him  the  moral  obligation  to  satisfy  the 
claims  of  his  creditors.  The  legal  discharge  puts  him 
in  a  position  to  accumulate  again,  and  thus  furnishes 
him  the  opportunity  to  provide  the  means  with  which 
to  pay  his  debts.  Some  make  this  right  use  of  the  ad 
vantage  which  the  law  gives  them,  but  many  regard 
the  legal  discharge  from  their  debts  as  a  release  also 
from  their  moral  obligations.  Bankruptcy  is  a  test, 
though  a  severe  one, .of  a  man's  real  character. 

Clause  5. — To  coin  money,  regulate  the  value  thereof 
and  of  foreign  coin,  and  fix  the  standard  of  weights  and 
measures. 

All  civilized  nations  use  gold  and  silver  for  money. 
To  coin  money  is  to  mold  the  metal  into  the  required 
form,  and  to  give  to  it  the  stamp  of  the  government. 
The  power  to  coin  money  is  an  attribute  of  sovereignty, 
and  is  therefore  properly  placed  with  the  general  gov 
ernment.  Without  doubt,  Congress  would  have  pos 
sessed  the  power  had  the  Constitution  contained  no 
specific  grant  to  this  effect.  A  subsequent  section  pro 
hibits  the  States  from  coining  money. 

Under  the  Articles  of  Confederation  the  power  of 
coining  money  was  possessed  by  the  States  and  Con 
gress  jointly,  though  Congress  had  *the  "sole  and  ex 
clusive  right  and  power  of  regulating  the  value  of  coin 
struck  by  their  own  authority,  or  by  that  of  the  re 
spective  States." 

By  act  of  April  2d,  1792,  Congress  made  provision  for 
issuing  money  by  the  establishment  of  the  Mint.  This 
was  located  at  Philadelphia,  where  Congress  held  its 
sessions  till  1800,  and  it  has  never  been  removed  from 
that  city.  Branch  Mints  have  been  established  at 
New  Orleans;  Charlotte,  N.  C. ;  Dahlonega,  Ga. ;  San 
Francisco,  Cal.;  Carson  City,  Nevada;  and  Dallas  City, 


1.  VIII.  5.  POWER  TO  COIN  MONEY.  .  ~ -/,,,*,    ,,101 


Oregon.  Assay  offices  have  been  established  at  New 
York,  and  at  Boise  City,  Idaho.  By  act  of  February 
12th,  1873,  Mints  are  established  at  Philadelphia,  San 
Francisco,  Carson,  and  Denver;  Assay  Offices  at  New 
York;  Boise  City,  Idaho;  and  Charlotte,  N.  C. 

The  coinage  act  of  1792  made  our  system  bi-metal- 
lic;  both  gold  and  silver  coins  were  made  real  money. 
The  gold  coins  were  three :  the  eagle  (of  the  value  of 
ten  dollars),  the  half-eagle,  and  the  quarter-eagle.  The 
silver  coins  were  five  :  the  dollar,  the  half-dollar,  the 
quarter,  the  dime  (written  "disme"  in  the  statute), 
and  the  half-dime.  AH  these  were  legal  tender  in  pay- 
ftient  of  all  debts.  There  were  also  two  copper  coins 
which  were  subsidiary,  or  token,  money :  the  cent  and 
the  half-cent. 

The  coins  both  of  gold  and  silver  have  a  small  frac 
tion  of  alloy,  and  the  alloyed  metal  is  called  standard 
gold  or  silver.  The  weight  of  the  coin  is  thus  ex 
pressed  in  the  standard  metal,  while  its  value  depends 
entirely  upon  the  amount  of  pure  metal  which  it  con 
tains.  In  the  gold  coins  made  under  the  act  of  1792, 
there  were  27  grains  of  standard,  and  24.75  of  pure, 
gold  to  the  dollar;  and  in  the  silver  coins,  416  grains 
of  standard,  and  371.25  grains  of  pure,  silver.  Gold 
wns  thus  estimated  to  be  worth  fifteen  times  the  same 
weight  of  silver. 

In  1834  an  ounce  of  gold  had  become  worth  consider 
ably  more  than  fifteen  ounces  of  silver,  and  as  a  conse 
quence  the  gold  coins  were  melted  up  and  sold  as 
metal.  In  order  to  retain  both  metals  in  circulation  as 
money,  it  was  necessary  either  to  reduce  in  weight  the 
gold  coins,  or  to  increase  the  silver.  A  little  reflection 
will  show  that  in  such  cases  the  metal  which  is  under 
valued  must  always  be  reduced;  the  one  that  is  over 
valued  being  really  the  standard.  A  reduction  of 
something  more  than  six  per  cent  was  accordingly 
made  in  the  weight  of  the  gold  coins.  In  1837  the 


102  THE  CONSTITUTION.  1.  VIII.  5. 

alloy  of  both  metals  was  fixed  at  one-tenth  ;  making, 
with  the  change  of  1834,  the  dollar  to  contain  25.8 
grains  of  standard,  and  23.22  grains  of  pure,  gold,  or 
412.5  grains  of  standard,  and  371.25  grains  of  pure,  sil 
ver.  This  reduction  in  the  gold  coins  changed  the  ratio 
of  gold  to  silver  from  fifteen  to  one  to  sixteen  to  one. 

But  presently  the  equilibrium  was  again  disturbed, 
silver  having  become  worth  more  than  the  one-six 
teenth  part  of  gold.  This  was  owing,  in  part  at  least, 
to  the  increased  production  of  gold  in  the  Australian 
and  Californian  mines.  If  both  silver  and  gold  are  to 
be  retained  as  full  legal  tender,  the  silver  coins  must 
be  reduced  in  weight  as  those  of  gold  were  in  1834. 
There  was  another  method,  however — to  give  up  the 
bi-metallic  system;  to  make  gold  alone  the  legal  stand 
ard,  and  have  the  silver  coins  subsidiary.  This  was 
what  the  government  determined  upon;  and  in  1851 
the  Secretary  of  the  Treasury  recommended  that  the 
silver  coins  be  reduced  in  weight,  and  be  made  legal 
tender  for  small  sums  only. 

A  bill  was  accordingly  prepared  which  became  a  law 
February  21,  1853,  providing  that  two  half-dollars,  four 
quarters,  etc.,  should  contain  384  grains  of  standard 
silver,  instead  of  412.5;  and  that  these  coins  should  be 
a  legal  tender  for  only  five  dollars.  The  silver  dollar 
was  not  mentioned  in  the  act,  and  so  remained  as  a 
nominal  coin,  but  it  formed  from  that  time  no  part  of 
the  circulating  money  of  the  country.  In  this  great 
monetary  change  the  United  States  followed  the  exam 
ple  of  England,  where  gold  was  adopted  as  the  only 
standard  in  1816,  silver  being  a  legal  tender  for  only 
forty  shillings. 

Silver  was  thus  practically  demonetized  in  1853,  and 
from  that  time  was  used  only  as  change  or  token 
money.  In  1873  a  general  coinage  act  was  passed, 
which  prohibited  the  coining  of  all  coins  except  those 
enumerated  in  the  act.  As  the  silver  dollar  was  not 


1.  VIII.  5.  AMERICAN  COIN.  103 

named  in  the  list,  this  legislation  completed  the  de 
monetization  of  silver,  and  declared  that  the  gold  dol 
lar  "shall  be  the  unit  of  value." 

From  1792  to  1875  the  ratio  of  the  metallic  values  of 
gold  and  silver  had  ranged  between  fifteen  and  sixteen 
to  one.  But  in  the  latter  year  silver  began  to  decline 
in  value,  so  that  in  July,  1876,  the  silver  in  the  old 
dollar  of  412.5  grains  was  worth  only  79J  cents.  There 
were  also  great  fluctuations  in  its  value,  the  variation 
amounting  to  twenty-five  per  cent  within  a  period  of 
five  months.  About  this  time  the  question  of  recoin- 
ing  the  silver  dollar,  and  making  it  again  a  full  legal 
tender,  began  to  be  agitated,  and  by  the  act  of  Febru 
ary  28,  1878,  it  was  finally  done.  The  bill  was  vetoed 
by  President  Hayes,  but  was  subsequently  passed  by 
the  requisite  majority  in  each  House.  The  act  pro 
vided  for  a  monetary  convention  of  representatives 
from  different  nations  to  agree,  if  possible,  upon  a  ratio 
of  value  between  silver  and  gold.  Such  an  agreement 
among  the  leading  nations  might  perhaps  make  feasi 
ble  the  concurrent  use  of  both  gold  and  silver  as  full 
money;  without  it,  one  metal  would  probably  soon 
drive  the  other  out  of  circulation. 

Besides  gold  and  silver  coins,  we  have  five-cent  and 
three-cent  pieces  made  of  copper  and  nickel,  and  two- 
cent  and  one-cent  pieces  of  copper.  The  tendency  of 
the  government  to  overvalue  the  cheap  coins  used  for 
change,  is  shown  in  the  fact  that  the  cent  issued  under 
the  acts  of  1864  and  1873  contains  less  than  46  grains 
of  copper,  while  that  of  1792  contained  264  grains. 

The  coinage  act  of  1873  provides  for  the  following 
coins:  Gold  —  the  dollar  piece;  the  quarter-eagle,  or 
two-and-a-half-dollar  piece;  the  three-dollar  piece;  the 
half-eagle,  or  five-dollar  piece  ;  the  eagle,  or  ten-dollar 
piece ;  and  the  double-eagle,  or  twenty-dollar  piece. 
The  silver  coins  are  a  trade-dollar;  a  half-dollar,  or 
fifty  cent  piece;  a  quarter-dollar,  or  twenty-five-cent 


104  THE  CONSTITUTION.  1.  VIII.  5. 

piece;  a  dime,  or  ten-cent  piece.  The  "  minor  coins"  are 
a  five-cent  piece,  a  three-cent  piece,  and  a  one-cent  piece. 

The  gold  dollar  was  made  the  unit  of  value;  the 
standard  weight  is  25.8  grains,  and  the  weight  of  pure 
gold  is  23.22  grains,  the  alloy  being  one-tenth.  The 
gold  coins  are  a  legal  tender  for  all  sums. 

To  the  silver  coins  provided  for  by  the  act  of  1873 
we  must  add  the  dollar  of  412.5  grains.  There  are 
thus  three  distinct  classes  of  silver  coins:  (a)  the  trade- 
dollar,  (6)  the  dollar,  and  (c)  the  subsidiary  coins — 
half-dollars  and  smaller  pieces.  The  trade-dollar  was 
not  intended  for  circulation  at  home,  but  for  trade  with 
Japan  and  other  Eastern  nations.  It  weighs  420  grains 
of  standard  silver.  It  is  a  coi?j,  but  not  money;  not 
even  token  money,  as  since  July,  1876,  it  has  not  been 
a  legal  tender  for  any  sum.  The  dollar  is  money 
proper,  legally  on  an  equality  with  gold.  The  smaller 
silver  coins  are  token  money,  a  legal  tender  for  five 
dollars  only.  They  were  slightly  increased  in  weight 
in  1873,  and  now  weigh  385.8  grains,  or  25  grammes  to 
the  dollar. 

Formerly  the  government  made  no  charge  for  coining 
money,  but  any  person  might  bring  gold  and  silver  bul 
lion  and  have  it  coined  free  of  expense.  If,  however,  he 
preferred  to  take  the  value  in  coins  at  once,  one-half  of 
one  per  cent  was  deducted.  Subsequently,  the  law  pro 
vided  that  the  cost  of  preparing  the  metal  for  coining 
should  be  defrayed  by  the  person  to  whom  the  bullion 
belonged.  In  1853  there  was  a  seignorage,  or  charge  for 
coining,  of  one-half  of  one  per  cent;  in  1873,  it  was 
made  one-fifth ;  and  in  1875  it  was  wholly  removed. 
But  while  there  is  free  coinage  of  gold,  silver  is  coined 
only  for  the  government,  as  silver  coins  are  largely 
overvalued;  but  standard  silver  is  converted  into  trade- 
dollars,  or  into  bars,  at  cost. 

The  decimal  system  for  our  coinage  was  recommended 
in  a  report  of  the  Financier,  January,  1782.  In  July, 


1.  VIII.  5.  FOREIGN  COIN.  105 

1785,  Congress  resolved  that  the  money  unit  of  the 
United  States  be  one  dollar,  and  that  the  decimal  sys 
tem  be  followed.  In  August,  1786,  they  provided  for 
the  issue  of  two  gold  coins,  the  eagle  and  the  half- 
eagle;  of  four  silver  coins,  the  dollar,  the  half-dollar, 
the  double-dime,  and  the  dime;  and  of  two  copper 
coins,  the  cent  and  the  half-cent. 

Though  the  dollar  was  made  the  unit  of  the  money 
system  in  1785,  the  accounts  had  been  kept  in  dollars 
for  more  than  ten  years. 

Foreign  Coin. — Congress  has  repeatedly  regulated  the 
value  of  foreign  coin;  that  is,  has  established  the  rates 
at  which  it  should  be  received  at  the  Custom-house 
for  duties  on  goods,  or  in  payment  for  the  public  lands. 
The  sovereign,  or  pound  sterling  of  Great  Britain,  is 
taken  at  £4.86^%,  and  this  is  to  be  the  par  of  exchange 
between  the  two  countries,  instead  of  $4.44f.  For  most 
of  the  time  the  coin  of  some  foreign  countries  has  been 
a  lawful  tender  for  debts  and  payments;  but  in  1857 
all  laws  of  this  kind  were  repealed,  and  none  have  been 
enacted  since. 

Under  Clause  2  of  the  present  section,  which  author 
izes  Congress  to  borrow  money,  we  have  spoken  of  the 
issue  of  Treasury  Notes.  These  have  been  issued  repeat 
edly  by  the  general  government,  the  notes  being  of 
various  denominations,  generally  redeemable  in  a  year 
or  other  short  period,  though  sometimes  with  the  time 
of  redemption  left  indefinite.  Generally  they  have 
borne  interest,  but  not  always.  They  were  receivable 
by  the  United  States  for  all  taxes  and  duties,  and  for 
public  lands,  and  were  paid  out  to  such  creditors  of 
the  government  as  were  willing  to  receive  them  at  par. 
In  most  cases  they  were  made  payable  to  order  and 
were  transferable  by  delivery  and  indorsement,  though 
some  were  made  payable  to  bearer,  and  were  transfer 
able  by  delivery.  In  1862,  and  the  years  immediately 
subsequent,  they  were  made  legal  tender  for  all  debts, 


106  THE  CONSTITUTION.  1.  VIII.  5. 

public  and  private,  except  interest  on  the  bonded  debt 
of  the  United  States,  and  duties  on  imports. 

These  Treasury  notes  are  what  the  Constitution  calls 
"bills  of  credit."  The  States  are  forbidden  to  "emit 
bills  of  credit,"  as  well  as  to  "coin  money,"  and  to 
"make  any  thing  but  gold  and  silver  coin  a  tender  in 
payment  of  debts."  The  Constitution  places  the  coin 
ing  of  money  among  the  powers  of  Congress,  but  says 
nothing  in  regard  to  their  issuing  bills  of  credit,  and 
nothing  as  to  their  making  even  gold  and  silver  a 
legal  tender.  In  the  draft  of  the  Constitution,  as 
reported  by  the  Committee  of  Detail,  Congress  was 
authorized  to  "coin  money  and  emit  bills  on  the 
credit  of  the  United  States."  But  the  latter  clause 
was  stricken  out.  A  suggestion  was  made  in  the  Con 
vention  to  prohibit  the  making  of  such  bills  a  legal 
tender,  but  no  motion  to  that  effect  was  made. 

The  Constitution,  therefore,  does  not  confer  upon 
Congress  in  specific  terms  the  authority  to  emit  bills 
of  credit,  or  to  make  them,  if  issued,  legal  tender;  nor 
does  it  prohibit  the  exercise  of  such  authority.  As  we 
have  seen,  the  government  has  assumed  it  as  one  of 
the  powers  of  sovereignty. 

The  question  whether  such  notes,  made  by  Congress 
legal  tender  in  payment  of  debts,  could  be  used  to  pay 
debts  contracted  prior  to  the  passage  of  the  law,  has 
been  twice  before  the  Supreme  Court.  In  the  first  case 
the  decision  was  adverse  to  such  payment;  but,  subse 
quently,  it  was  decided  in  favor  of  it.  There  can  be  no 
doubt  that  this  second  decision  accords  with  the  gen 
eral  theory  and  practice  of  the  people  from  the  time 
the  law  was  passed  until  the  time  of  the  first  decision. 
During  this  period  of  some  eight  years,  debtors  ten 
dered  and  creditors  received  these  government  notes  in 
payment  of  debts  without  protest  or  unwillingness. 

This  second  decision  covers  the  whole  ground,  and 
establishes  the  right  of  the  government  to  issue  bills 


1.  VIII.  5.  TREASURY  NOTES.  107 

of  credit,  and  to  make  them  a  lawful  tender  for  all 
debts,  as  well  past  as  future.  At  the  same  time  it  is 
clear  that  this  right  is  one  which  should  be  exercised 
with  the  greatest  caution,  and  only  in  times  of  extreme 
exigency. 

Some  writers  make  no  difference  between  coining 
money  and  issuing  Treasury  notes;  holding  that  a  legal 
tender  note  is  as  truly  monej^,  and  coined  money,  as  a 
silver  dollar  or  a  gold  eagle.  "The  government  paper 
now,  1866,  forming,  almost  exclusively,  the  currency 
of  the  country,  is  the  money  of  the  country.  It  makes 
no  pretension  to  being  a  substitute  or  a  representative. 
All  substitutes  for  money  are  redeemable  in  that;  and 
that  is  redeemable  in  nothing,  so  long  as  it  constitutes 
money  and  is  itself  a  legal  tender  for  all  the  purposes 
of  money."1  So  Mr.  Tiffany  holds  that  the  value  of 
money  arises  from  the  government  stamp.  The  arti 
cle  stamped  may  be  gold,  silver,  or  any  thing  else. 
"Whether  the  coin  shall  be  metal,  leather,  parchment, 
paper,  or  any  other  substance,  is  a  question  of  expedi 
ency."2 

It  seems  to  be  much  simpler  as  well  as  truer  to 
say,  that  the  present  government  paper,  circulating  as 
money,  is  a  government  loan  —  a  forced  loan.  Every 
note  is  a  promise  to  pay  by  the  government.  It  is  a 
note  like  a  note  of  hand  drawn  by  a  private  citizen,  or 
a  note  issued  by  a  bank.  The  difference  is,  that  a 
bank-note  is  a  promise  to  pay  on  demand,  and  the 
promissory  note  of  an  individual  is  a  promise  to  pay 
at  some  specified  time,  while  on  the  government  note 
the  time  is  indefinite.  A  gold  eagle  has  upon  it  the 
stamp  of  the  United  States,  which  is  a  guaranty  that 
it  contains  so  many  grains  of  gold.  It  bears  its  value 
upon  its  face  —  ten  dollars.  But  a  legal  tender  note 


1  Farrar's  Manual  of  the  Constitution,  p.  339. 

2  Tiffany's  Treatise  on  Government,  p.  223. 


108  THE  CONSTITUTION.  1.  VIII.  5. 

does  not  purport  to  be  ten  dollars;  it  is  a  mere  cer 
tificate  of  indebtedness  for  that  amount  on  the  part  of 
the  government  to  the  holder  of  the  note.  "The  United 
States  will  pay  the  bearer  ten  dollars/'  If  this  piece 
of  paper  were  itself  ten  dollars,  there  would  be  no 
subsequent  transaction  requisite  between  the  holder 
and  the  government.  As  between  man  and  man  it  is 
given  and  taken  as  in  full  satisfaction  of  debt ;  but  he 
who  receives  it  holds  it  as  a  valid  debt  against  the 
United  States.  When  the  government  pays  gold  to  its 
creditor,  the  debt  is  paid.  When  it  pays  him  legal 
tender  notes,  it  gives  him  a  certificate  of  indebtedness 
which  he  may  transfer  to  another.  If  the  Treasury 
notes  in  the  hands  of  the  people  are  veritable  money, 
as  truly  so  as  gold,  then  the  United  States  is  not  in 
debted  to  those  who  hold  them  any  more  than  it  is  to 
those  who  have  gold  eagles  in  their  possession;  and 
the  Treasury  Department  should  not  report  these 
Treasury  notes  as  a  part  of  the  national  debt. 

In  authorizing  Congress  to  "borrow  money"  as  well  as 
"coin  money  and  regulate  the  value  thereof,"  and  in  pro 
hibiting  the  States  from  coining  money  and  emitting 
bills  of  credit,  the  Constitution  places  in  Congress  the 
control  of  the  whole  subject  of  money;  not  only  of  gold 
and  silver  coin,  but  of  all  substitutes  for  them.  This 
control,  however,  so  far  as  it  relates  to  the  bank-note 
currency  of  the  country,  Congress  has  not  chosen  to  ex 
ercise,  except  partially,  until  within  a  few  years.  A 
bank  of  the  United  States  was  chartered  February  25th, 
1791,  as  a  fiscal  agent  of  the  government,  with  a  capital 
of  ten  millions,  and  to  continue  twenty  years.  On  the 
tenth  of  April,  1816,  another  was  chartered,  with  a 
capital  of  thirty-five  millions,  to  continue  for  the  same 
period.  Congress  refused  to  re-charter  the  first,  and 
President  Jackson  vetoed  the  bill  to  renew  the  charter 
of  the  second.  In  1841,  two  bills  in  succession  were 
passed  to  establish  a  United  States  bank,  but  both 


I.  VIII.  5.  BANK-NOTE  CURRENCY.  109 

were  vetoed  by  President  Tyler.  Congress  also  author 
ized  the  establishment  of  banks  in  the  District  of 
Columbia. 

With  these  exceptions  the  charters  of  the  banks  of 
the  country  have  been  granted  by  the  several  State 
legislatures.  So  familiar  had  the  people  become  with 
the  currency  furnished  by  these  State  banks,  that  when 
Congress  passed,  February  25th,  1863,  the  act  to  estab 
lish  National  banks,  many  supposed  that  the  general 
government  was  usurping  an  authority  which  belonged 
to  the  States.  On  the  contrary,  we  are  forced  to  in 
quire,  where  did  the  States  obtain  the  power  to  charter 
banks,  and  thus  provide  the  paper  circulation  of  the 
country?  "Is  not  the  right/'  says  Mr.  Webster,  "of 
issuing  paper  intended  for  circulation  in  the  place, 
and  as  the  representative,  of  metallic  currency,  derived 
merely  from  the  power  of  coining  and  regulating  the 
metallic  currency?  Could  Congress,  if  it  did  not  pos 
sess  the  power  of  coining  money  and  regulating  the 
value  of  foreign  coins,  create  a  bank  with  power  to 
circulate  bills?  It  would  be  difficult  to  make  it  out. 
Where,  then,  do  the  States,  to  whom  all  control  over 
metallic  currency  is  altogether  prohibited,  obtain  this 
power?"1 

The  States  have  established  banks  because  Congress 
tacitly  left  it  to  them  in  great  measure.  The  authority 
was  in  the  general  government;  but,  as  Congress  did 
not  choose  to  exercise  it,  the  State  legislatures  went 
forward  in  this  work  till  such  time  as  the  general  gov 
ernment  should  see  fit  to  provide  a  bank-note  currency 
for  the  whole  people. 

The  act  of  June  3d,  1864,  a  substitute  for  that  of  Feb 
ruary  25th,  1863,  provided  for  a  Bureau  of  Currency  in 
the  Treasury  Department,  at  the  head  of  which  is  a 
Comptroller.  Banking  associations  may  be  formed  with 


Tiffany,  p.  227;  Story,  II,  56. 


HO  THE  CONSTITUTION.  1.  VIII.  5. 

power  to  issue  bills,  receive  deposits,  loan  money,  and 
perform  the  ordinary  functions  of  banks.  By  an  act  of 
March,  1865,  amended  July  13th,  1866,  a  tax  of  ten  per 
cent  was  levied  on  the  notes  of  State  banks  used  for 
circulation  after  August  1st,  1866.  This,  of  course,  ex 
cluded  these  notes  from  circulation,  and  the  present 
bank  currency  of  the  country  consists  of  the  notes  of 
National  banks. 

This  circulation  was  at  first  limited  to  three  hundred 
and  fifty-four  millions,  and  was  distributed  among  the 
States  and  Territories  according  to  wealth  and  popula 
tion  jointly;  but  both  these  provisions  have  been  re 
pealed.  It  is  secured  by  a  deposit  of  United  States 
bonds  in  the  treasury  of  the  United  States.  The  circu 
lation  of  a  bank  can  not  exceed  ninety  per  cent  of  the 
amount  of  bonds  deposited;  ranging  from  sixty  per 
cent  when  the  capital  is  three  millions  and  over,  to 
ninety  per  cent  when  not  over  half  a  million. 

The  advantages  of  this  national  currency  are,  that  the 
payment  of  the  notes  is  guarantied  by  the  United  States, 
that  a  uniform  currency  is  provided,  and  that  the  notes 
are  receivable  for  all  dues  to  the  United  States  except 
duties  on  imports. 

Much  effort  has  been  made  to  secure  an  international 
coinage.  As  the  pound  sterling  contains  113  grains  of 
gold,  and  the  American  half-eagle  116.1,  if  the  latter 
were  reduced  3.1  grains  in  weight,  or  about  thirteen 
cents  in  value,  the  two  coins  would  be  equal  in  value. 
This  would  make  four  shillings  equivalent  to  one  dollar. 
So  if  the  twenty-five-franc  piece  were  increased  about 
four  cents,  it  would  equal  the  pound  sterling.  These 
slight  changes  would  secure  uniformity  in  the  gold  coins 
of  England,  France,  and  the  United  States. 

Weights  and  Measures. — There  is  propriety  in  connect 
ing  weights  and  measures  with  money.  By  money  we 
express  the  prices,  or  relative  values,  of  all  commodi 
ties,  and  by  weights  and  measures  we  ascertain  the 


1.  VIII.  5.  WEIGHTS    AND   MEASURES.  HI 

quantities  of  commodities.  As  we  need  uniformity  in 
money,  so  we  need  it  in  all  measures  of  quantity;  and, 
therefore,  both  subjects  were  committed  to  Congress. 

The  importance  of  uniformity  was  urged  by  President 
Washington  in  his  message  to  the  first  Congress;  and 
various  reports  on  the  subject  have  been  presented  at. 
different  times.  A  very  elaborate  one  was  prepared  by 
John  Quincy  Adams  when  Secretary  of  State,  in  1821, 
but  the  recommendations  were  never  embodied  in  a 
statute. 

By  an  act  of  Congress,  May  19th,  1828,  the  brass  troy 
pound  weight,  procured  by  the  minister  of  the  United 
States  at  London,  was  made  the  standard  troy  pound  of 
the  Mint  of  the  United  States.  A  series  of  standard 
weights  corresponding  to  this  was  ordered  to  be  made, 
from  the  hundredth  part  of  a  grain  to  twenty-five 
pounds.  In  1K36  the  Secretary  of  the  Treasury  was  di 
rected  to  cause  a  complete  set  of  weights  and  measures 
adopted  as  standards  to  be  delivered  to  the  governor  of 
each  State  that  a  uniform  standard  might  be  estab 
lished  throughout  the  United  States. 

The  Metric  System  was  legalized  by  act  of  Congress 
in  July,  1866;  and  in  1873,  and  again  in  1876,  appro 
priations  were  made  for  procuring  metric  standards  for 
the  States,  and  for  the  construction  and  verification  of 
standard  weights  and  measures  for  the  custom  houses 
and  for  the  several  States. 

This  is  a  decimal  system,  and  its  unit  is  a  meter, 
which  is  equal  to  39.37  inches.  Its  multiples  are,  the 
dekameter  (10  meters),  the  hectometer  (100  meters),  the 
kilometer  (1,000  meters),  and  the  myriameter  (10,000  me 
ters).  The  subdivisions  are,  the  decimeter  (^  of  a  me 
ter),  the  centimeter  (y^-Q  of  a  meter),  and  the  millimeter 
(linns-  of  a  meter). 

The  unit  of  the  measures  of  surface  is  the  centare, 
which  equals  one  square  meter.  The  others  are  the 


112  THE  CONSTITUTION.  1.  VIII.  6. 

are  (100  square  meters),  and  the  hectare  (10,000  square 
meters). 

Of  measures  of  capacity  the  liter  is  the  unit,  which 
equals  one  cubic  decimeter.  Its  equivalents  are  0.908 
quarts  in  dry,  and  1.0567  in  liquid  measure.  The  other 
denominations  are  formed  like  those  in  measures  of 
length  —  the  dekaliter,  hectoliter,  and  kiloliter;  and  the 
deciliter,  centiliter,  and  milliliter. 

The  unit  of  the  measures  of  weight  is  the  gram,  which 
is  the  weight  of  one  cubic  centimeter  of  water  at  its 
maximum  density,  and  is  the  equivalent  of  15.432 
grains  avoirdupois.  Then  we  have,  as  before,  the  mul 
tiples,  dekagram,  hectogram,  kilogram,  myriagram,  quintal, 
and  miliier  or  tonneau  (2204.6  pounds) ;  and  the  subdi 
visions,  decigram,  centigram,  and  milligram. 

The  legalizing  of  this  metric  system  is  a  step  towards 
international  uniformity.  The  advantages  of  the  use 
of  the  same  weights  and  measures  by  all  civilized  na 
tions,  and  of  the  same  gold  and  silver  coins,  are  many 
and  obvious;  but  it  will  be  exceedingly  difficult  to 
change,  in  these  respects,  the  habits  of  nations  fixed  by 
long  usage. 

By  act  of  July  27th,  1866,  the  Postmaster-General  was 
required  to  furnish  post-offices  exchanging  mails  with 
foreign  countries  postal  balances,  denominated  in  grams 
of  the  metric  system ;  and,  until  otherwise  provided  by 
law,  one-half  ounce  avoirdupois  was  to  be  taken  as  15 
grams  (15  grams  being  equal  to  .529  oz). 

Clause  6.  To  provide  for  the  punishment  of  counterfeit 
ing  the  securities  and  current  coin  of  the  United  State*. 

The  right  to  punish  counterfeiting  would  follow  from 
the  right  to  coin  money.  By  "  securities  "  are  meant  all 
certificates  of  indebtedness,  such  as  bonds,  Treasury 
notes,  etc.  The  word  stock,  or  stocks,  is  often  used  to 
denote  a  debt  due  by  a  government  on  which  it  pays 
interest.  Thus  we  say  that  a  person  holds  ten  thousand 


1.  VIII.  6.  COUNTERFEITING.  113 

dollars  of  United  States  securities,  or  twenty  thousand 
dollars  of  Ohio  stock. 

The  general  government  punishes  the  making  and 
also  the  passing  of  counterfeit  money  or  securities.  It 
is  held  tluit  the  States  may  also  punish  the  passing  of 
counterfeits  on  United  States  coin  or  securities. 

Congress  has  passed  laws  punishing  the  making, 
forging,  or  counterfeiting,  and  the  passing,  uttering,  or 
publishing,  of  the  coin  of  the  country,  the  notes  of  the 
United  States  hank,  the  Treasury  notes,  the  fractional 
currency,  the  notes  of  the  National  banks,  the  excise 
stamps  used  for  internal  revenue,  letters  patent,  post 
age  stamps,  stamped  envelopes,  and  custom-house  cer 
tificates. 

The  law  now  in  force  relating  to  counterfeiting  the 
coin  of  the  United  States  was  passed  in  February,  1873. 
It  provides  that  if  any  person,  except  as  now  author 
ized  by  law,  shall  make,  or  cause  to  be  made,  or  shall 
utter  or  pass,  or  attempt  to  utter  or  pass,  any  coins  of 
gold  or  silver,  whether  in  the  semblance  of  the  coins 
of  the  United  States  or  of  foreign  countries,  every  per 
son  so  offending  shall  be  punished  by  fine  not  exceed 
ing  five  thousand  dollars,  and  by  imprisonment  for  a 
term  not  exceeding  ten  years.  The  penalty  for  coun 
terfeiting  the  "minor  coins"  is  a  fine  not  exceeding  one 
thousand  dollars,  and  imprisonment  not  exceeding  three 
years. 

The  law  of  June  30th,  1864,  provides  that  if  any  per 
son  shall  falsely  make,  counterfeit,  or  alter,  or  shall  pass, 
utter,  or  publish  any  obligation  or  security  of  the  United 
States,  etc.,  he  shall,  on  conviction,  be  punished  by  fine 
not  exceeding  five  thousand  dollars,  and  by  imprison 
ment  and  confinement  at  hard  labor  not  exceeding  fif 
teen  years.  The  act  also  provides  that  the  words  "ob 
ligation  or  other  security  of  the  United  States  "  shall 
be  held  to  include  "all  bonds,  coupons,  national  cur 
rency,  United  States  notes,  Treasury  notes,  fractional 
c.  G.  10. 


114  THE   CONSTITUTION.  1.  VIII.  7. 

notes,  checks  for  money  of  authorized  officers  of  the 
United  States,  certificates  of  indebtedness,  certificates  of 
deposit,  stamps,  and  other  representatives  of  value,  of 
whatever  denomination,  which  have  been  or  may  be 
issued  under  any  act  of  Congress." 

Clause  7. —  To  establish  post-offices  and  post-roads. 

A  Post-office  Department  was  established  before  the 
Declaration  of  Independence.  In  July,  1775,  the  Conti 
nental  Congress  made  provision  for  such  a  department, 
and  Dr.  Benjamin  Franklin  was  placed  at  the  head  of 
it,  with  the  title  of  "  Postmaster-General  of  the  United 
Colonies."  The  Articles  of  Confederation  gave  Congress 
"the  sole  and  exclusive  right  and  power  of  establishing 
and  regulating  post-offices  from  one  State  to  another, 
throughout  all  the  United  States,  and  exacting  such 
postage  on  the  papers  passing  through  the  same  as  may 
be  requisite  to  defray  the  expenses  of  the  said  office." 

"By  the  authority  of  two  short  words,  'establish  post- 
offices,'  the  government  have  instituted  an  establish 
ment  employing  more  men,  controlling  more  patronage, 
and  collecting  and  disbursing  more  revenue,  than  suf 
ficed,  within  a  few  years  past,  for  the  administration  of 
the  whole  government."1  In  1790,  there  were  seventy- 
five  post-offices  in  the  United  States,  and  the  expend 
iture  for  that  year  wag  $32,140.  In  1876,  there  were 
36,383  post-offices,  the  mails  were  transported  136,269,708 
miles,  and  the  expenditures  were  $32,796,186.  The  ex 
penditures  exceed  the  receipts  by  more  than  $4,000,000. 

The  Post-office  Department  is  under  a  Postmaster- 
General,  and  three  Assistant  Postmasters-General.  Post 
masters  whose  compensation  is  less  than  one  thousand 
dollars,  are  appointed  by  the  Postmaster-General,  and 
may  be  removed  by  him.  In  all  other  cases  the  ap- 


^arrar,  p.  346. 


1.  VIII.  7.         POST-OFFICES  AND  POST-ROADS  115 

pointment,  which  is  four  years,  is  made  by  nomination 
of  the  President  and  confirmation  by  the  Senate.  This 
class,  which  numbers  less  than  two  thousand,  are  paid 
salaries.  The  others  receive  the  rents  from  boxes,  and 
a  percentage  on  the  sale  of  stamps  and  other  office  re 
ceipts.  Prior  to  1864  all  the  postmasters  received  their 
compensation  in  this  way.  Except  in  the  city  of  New 
York,  where  the  salary  is  $8,000,  no  postmaster  receives 
over  $4,000  a  year.  The  salary  is  not  expected  to  ex 
ceed  one-half  of  the  gross  revenue  of  the  office.  The 
amount  paid  for  the  transportation  of  the  mail  is  nearly 
three  times  that  paid  to  the  postmasters.  In  a  few  in 
stances  the  income  of  the  Post-office  Department  has 
equaled  or  exceeded  the  expenditures.  As  the  popula 
tion  of  the  country  becomes  more  dense,  the  relative  cost 
of  transporting  the  mails  may  be  expected  to  diminish. 

Mailable  matter  is  divided  into  three  classes,  namely : 
first,  letters;  second,  regular  printed  matter ;  third,  mis 
cellaneous  matter.  (1)  Postage  on  letters  not  exceeding 
a  half-ounce  in  weight  is  three  cents.  (2)  On  news 
papers  and  other  periodicals  sent  regularly  once  a  week 
or  oftener,  the  postage  is  two  cents  a  pound  prepaid. 
The  matter  is  weighed  in  bulk.  If  sent  less  frequently 
than  once  a  week,  the  postage  is  three  cents  a  pound. 
Newspapers  are  carried  free  to  subscribers  in  the  county 
in  which  they  are  published.  (3)  Mailable  matter  of 
the  third  class  is  divided  into  two  classes,  (a)  On 
books,  catalogues,  pamphlets,  transient  newspapers,  and 
periodicals,  etc.,  the  postage  is  one  cent  for  two  ounces 
or  less.  (6)  On  blank  books,  book  manuscript,  and 
merchandise  the  postage  is  one  cent  for  each  ounce. 
Of  third  class  mailable  matter  no  package  may  exceed 
four  pounds  in  weight.  Less  than  one-tenth  of  the 
mailable  matter  in  weight  belongs  to  the  first  class. 

Letter  postage  is  now  three  cents  for  any  distance 
within  the  United  States.  Formerly  the  rates  were 
much  higher,  and  were  different  for  different  distances. 


116  THE  CONSTITUTION.  1.  VIII.  7. 

From  1792  to  1799  there  were  nine  rates,  ranging  from 
six  cents  for  thirty  miles  and  less,  to  twenty-five  cents 
for  a  distance  over  four  hundred  and  fifty  miles.  From 
1799  to  1816  there  were  six  rates:  the  lowest,  eight 
cents  for  forty  miles ;  the  highest,  twenty-five  cents 
for  over  five  hundred.  During  the  year  1815,  these 
rates  were  fifty  per  cent  higher.  From  1816  to  1845 
the  rates  were  six  cents,  tpn,  twelve  and  a  half,  eigh 
teen  and  three-fourths,  and  twenty-five,  for  distances 
from  thirty  miles  to  four  hundred  and  upwards.  In 
1845  the  rates  were  greatly  reduced  in  amount,  and 
the  system  simplified.  Under  three  hundred  miles  the 
postage  was  five  cents;  over  that  distance,  ten  cents. 
In  1851  this  was  changed  to  three  cents  for  three  thou 
sand  miles,  if  prepaid,  and  five  cents  if  not  prepaid; 
over  three  thousand  miles,  doufile  these  rates  were 
charged.  In  1863  the  present  rate  was  established- 
three  cents  to  any  part  of  the  United  States.  In  1872, 
postal  cards  were  authorized,  which  are  carried  in  the 
mails  at  a  postage  charge  of  one  cent  each,  including 
the  cost  of  the  card. 

Until  1845,  letters  were  single  or  double,  according 
as  there  was  one  piece  of  paper  or  two;  since  that 
time  a  letter  or  parcel  not  exceeding  half  an  ounce 
has  been  deemed  a  single  letter.  Prior  to  1851  there 
was  no  reduction  for  prepayment.  In  that  year  a  dif 
ference  of  two  cents  was  made,  as  stated  above.  In 
1855,  prepayment  was  required,  and  this  continues  to 
be  the  rule. 

Postage  stamps  were  introduced  in  1847.  but  did  not 
become  general  till  1855,  when  letters  were  required 
to  be  prepaid.  Stamped  envelopes  were  furnished  first 
in  1852. 

In  1855,  for  the  greater  security  of  valuable  letters, 
the  Postmaster-General  was  authorized  to  establish  a 
plan  for  registration.  A  fee  of  ten  cents  besides  the 
regular  postage  is  charged  for  registering  a  letter. 


1.  VIII.  7.          POST-OFFICES  AND   POST-ROADS.  117 

The  government  takes  special  charge  of  such  letters, 
but  does  not  hold  itself  responsible  if  they  are  lost. 

In  1864  the  postal  money-order  system  was  established. 
This  enables  one  who  wishes  to  send  money  to  a  cor 
respondent  to  do  it  by  depositing  the  amount  with  a 
postmaster,  and  receiving  an  order  on  the  postmaster 
of  the  place  where  his  correspondent  lives.  A  small 
fee  is  charged,  ranging  from  ten  to  twenty-five  cents 
according  to  the  amount  of  the  order.  No  order  is 
issued  for  more  than  fifty  dollars.  The  postmaster  is 
entitled  to  one-third  of  the  fees  collected  by  him,  and 
one-fourth,  of  one  per  cent  of  the  orders  which  he  pays. 
Money  orders  are  exchanged  between  the  United  States 
and  Canada,  Great  Britain  and  Ireland,  Germany, 
Switzerland,  and  Italy. 

In  1863,  the  Postmaster-General  was  authorized  to 
provide  for  the  free  delivery  of  letters  by  carriers,  in 
cases  which,  in  his  judgment,  might  justify  it.  In 
1865  the  system  of  free  delivery  was  required  to  be 
established  in  every  place  containing  a  population  of 
fifty  thousand,  and  at  such  other  places  as  might  be 
thought  best.  In  1873,  letter  carriers  were  authorized 
in  all  places  containing  not  less  than  twenty  thousand 
inhabitants.  The  postage  on  drop  letters  is  two  cents 
in  places  where  there  is  free  delivery;  in  other  places, 
one  cent. 

Letters  unclaimed  for  a  certain  time  are  advertised; 
if  not  called  for,  they  are  sent  to  the  Dead-letter  Office. 
Here  they  are  opened  and  returned  to  the  writers. 
During  the  year  ending  June  30th,  1872,  there  were 
4,241,374  dead  letters.  The  name  and  address  of  the 
writer  upon  the  envelope  secures  its  return  to  him  if 
not  called  for. 

The  franking  privilege,  or  privilege  of  sending  and 
receiving  mail  matter  free,  was  formerly  enjoyed  by 
the  President,  Vice-President,  the  Cabinet  officers,  the 
Members  of  the  Senate  and  House  of  Representatives, 


THE  CONSTITUTION.  1.  VIII.  7. 

the  Delegates  from  the  Territories,  and  some  others. 
In  general,  it  was  limited  to  the  term  of  office,  but 
Senators  and  Representatives  could  retain  it  till  the 
December  following  the  expiration  of  their  term.  To 
each  of  the  first  four  Presidents  it  was  voted  for  the 
remainder  of  his  life,  and  subsequently  it  was  con 
ferred  for  life  on  all  Ex-Presidents.  It  has  also  been 
voted  to  the  widows  of  the  Presidents  during  their 
lives.  In  February,  1873>  the  franking  privilege  was 
abolished,  the  act  to  take  effect  the  first  of  July  fol 
lowing.  Modifications  have  since  been  made.  The  act 
of  March,  1877,  provides  that  letters  and  packages  on 
government  business  may  be  sent  free  from  the  depart 
ments,  and  that  Senators  and  Representatives  may  re 
ceive  and  send  all  documents  printed  by  Congress. 

Mail  Routes. — Obstruction  of  the  mails  is  forbidden 
under  heavy  penalties,  as  is  the  carrying  of  mail 
matter  outside  of  the  mails  by  public  carriers. 

In  1825  it  was  enacted,  "That  no  other  than  a  free 
white  person  shall  be  employed  in  conveying  the  mail; 
and  any  contractor  who  shall  employ,  or  permit,  any 
other  than  a  free  white  person  to  convey  the  mail, 
shall,  for  every  such  offense,  incur  a  penalty  of  twenty 
dollars."  This  disqualification  continued  for  forty  years; 
it  was  removed  March  3d,  1865. 

The  power  to  establish  post-roads  has  been  inter 
preted  to  include  the  power  of  making  internal  im 
provements.  In  1803,  Congress  authorized  three  per 
cent  of  the  net  proceeds  of  the  sale  of  public  lands  in 
the  State  of  Ohio  to  be  paid  to  that  State  for  the 
construction  of  roads.  In  1806,  an  act  was  passed  for 
the  construction  of  the  Cumberland  Road  —  more  com 
monly  called  the  National  Road  —  from  the  River  Poto 
mac  to  the  Ohio.  Both  these  acts  were  approved  by 
Mr.  Jefferson,  as  President,  though  in  one  of  his  mes 
sages  he  expresses  the  opinion  that  Congress,  under 
the  Constitution,  does  not  possess  the  power  of  making 


1.  VIII.  8.  COPYRIGHTS  AND  PATENTS.  119 

roads.  While  doubting  the  existence  of  the  power,  he 
appeared  to  favor  an  amendment  to  the  Constitution 
conferring  it  upon  Congress. 

As  the  object  of  granting  to  Congress  the  power  to 
establish  post  offices  and  post-roads  was  to  give  them 
the  control  of  the  transmission  of  correspondence,  it  is 
claimed  that  the  electric  telegraph  should  be  managed 
by  the  government.  The  control  over  this  agency,  it 
is  said,  can  be  abdicated  by  the  government  with  no 
more  propriety  than  that  over  correspondence  by  rail 
road  or  steamboat.  The  subject  was  referred  to  com 
mittees  in  the  Forty-second  Congress,  and  favorably 
reported  on.  The  plan  proposed  provides  that  tele 
grams  be  received  and  distributed  through  the  post- 
office,  and  transmitted  like  other  postal  matter  by 
parties  owning  and  operating  the  lines,  and  contract 
ing  to  perform  the  service  at  rates  fixed  by  Congress.1 

Clause  8.  —  To  promote  the  progress  of  science  and 
useful  arts,  by  securing,  for  limited  times,  to  authors  and 
inventors  the  exclusive  right  to  their  respective  writings 
and  discoveries. 

This  clause  authorizes  Congress  to  issue  copyrights  to 
authors,  and  patents  to  inventors.  There  is  no  limita 
tion  to  science  in  the  strict  sense  of  the  word,  nor  to 
the  useful  as  distinguished  from  the  fine  arts.  All 
books,  maps,  charts,  musical  compositions,  engravings, 
photographs  (or  negatives),  chromos,  statues,  etc.,  what 
ever  the  subject  may  be,  are  included,  and  so  are  all 
inventions.  There  are  many  copyrights  and  patents 
issued  which  promote  the  progress  neither  of  science 
nor  of  the  useful  arts.  But  there  can  be  no  question 
as  to  the  propriety  of  giving  to  authors  and  inventors 
the  exclusive  right  for  a  limited  time  to  their  works. 

Copyrights. — In  England  authors  have  rights  to  their 


1  North  American  Review,  July,  187S. 


120  THE   CONSTITUTION.  1.  VIII.  8. 

works  by  common  law  as  well  as  by  statute;  but  in 
this  country  the  right  is  derived  entirely  from  legisla 
tion.  Prior  to  the  adoption  of  the  Constitution,  the 
States  granted  copyrights,  and  the  first  act  of  Congress 
on  the  subject  recognized  the  rights  thus  granted.  The 
first  law  was  enacted  in  1790,  and  gave  to  the  authors 
the  exclusive  right  to  their  works  for  fourteen  years, 
with  liberty  of  renewal  for  a  like  period.  In  1831  the 
term  was  made  twenty-eight  years,  with  the  right  to 
renew  for  fourteen  years  longer.  If  the  author  has  died, 
the  renewal  may  be  made  by  the  widow  or  children. 

A  copyright  is  obtained  as  follows:  A  printed  copy 
of  the  title  of  the  book,  or  a  description  of  the  paint 
ing  or  other  article  for  which  a  copyright  is  desired, 
must  be  sent  to  the  Librarian  of  Congress,  and  within 
ten  days  from  the  publication  two  copies  of  the  book, 
or  a  photograph  of  the  painting,  must  be  sent  to  the 
said  Librarian.  In  every  copy  of  the  book  there  must 
be  entered  on  the  title  page,  or  the  page  following, 
the  words  "Copyright,  18 — ,  by  A.  B."  The  copyright 
now  issued  by  the  Librarian  of  Congress  was  formerly 
issued  by  the  Clerk  of  the  District  Court  of  the  United 
States  the  present  law  having  been  enacted  in  July, 
1870.  In  books  printed  early  in  the  century,  the 
copyright  entry  on  the  page  following  the  title  page 
was  full  and  formal,  sometimes  covering  the  entire 
page. 

The  copies  of  books  and  other  articles  for  which 
copyrights  were  obtained  were  kept  in  the  Department 
of  State  till  1859,  when  they  were  transferred  to  the 
Department  of  the  Interior.  In  1870,  they  were  placed 
under  the  control  of  the  Librarian  of  Congress.  When 
the  Smithsonian  Institution  was  established  in  1846, 
Congress  provided  that  a  copy  of  every  book  for  which 
a  copyright  was  granted  should  be  placed  in  the  library 
of  that  institution,  and  another  copy  in  the  Congres 
sional  Library.  These  seem  to  have  been  in  addition  to 


1.  VIII.  8.  COPYRIGHTS  AND  PATENTS.  121 

the  copy  deposited  with  the  Clerk  of  the  District  Court 
when  the  copyright  was  obtained.  In  1859  the  pro 
vision  as  to  the  copy  for  the  library  of  the  Smith 
sonian  Institution  was  repealed.  Two  copies  are  now 
sent  to  the  Librarian  of  Congress,  as  stated  above. 
During  the  year  ending  December  1st,  1877,  copyrights 
were  entered  for  4,476  volumes  of  books,  and  for  3,518 
pamphlets  and  periodicals.  The  whole  number  of 
copyrights  entered  during  the  year  was  13,979. 

If  there  are  different  editions  of  the  work  issued  at 
the  same  time,  the  two  copies  deposited  must  be  of 
the  best  edition;  a  copy  of  every  subsequent  edition 
in  which  any  substantial  changes  are  made  must  also 
be  sent.  The  penalty  for  failure  to  send  these  copies 
is  twenty-five  dollars. 

A  copyright  is  assignable  in  law,  but  the  assign 
ment  must  be  recorded  in  the  office  of  the  Librarian 
of  Congress  within  sixty  days.  The  mode  of  securing 
a  renewal  of  a  copyright  is  the  same  as  for  obtaining 
the  original;  it  must  be  done  within  six  months  be 
fore  the  expiration  of  the  first  term. 

The  subject  of  international  copyright  has  been  dis 
cussed  with  much  earnestness  by  authors  and  publish 
ers,  and  organizations  have  been  formed  for  the  pur 
pose  of  securing  the  necessary  legislation.  Thus  far, 
however,  there  has  been  no  action  of  Congress  on  the 
subject. 

Patents.  —  Provision  was  made  by  Congress  in  1790 
for  giving  to  inventors  the  exclusive  right  to  their 
discoveries.  From  that  time  to  the  present,  patents 
have  been  issued,  the  number  increasing  each  year. 
At  first,  applications  for  patents  were  made  to  the 
Secretary  of  State,  and  the  decision  was  made  by  a 
Board,  consisting  of  the  Secretary  of  State,  the  Secre 
tary  of  War,  and  the  Attorney-General.  In  1793  the 
Secretary  of  State  alone  was  authorized  to  issue  patents. 
In  1836,  an  office,  or  bureau,  was  created  in  the  Depart- 
C.  G.  11. 


122  THE  CONSTITUTION.  1.  VIII.  8. 

ment  of  State,  under  the  name  of  the  Patent  Office, 
the  chief  officer  being  styled  the  Commissioner  of 
Patents.  From  that  time,  patents  have  been  issued 
by  the  Commissioner.  The  Patent  Office  was  trans 
ferred  to  the  Department  of  the  Interior  in  1849, 
when  this  latter  department  was  created.  Originally 
patents  were  signed  by  the  President  of  the  United 
States;  then  by  the  Secretary  of  State  and  the  Com 
missioner  of  Patents;  now  by  the  Secretary  of  the  In 
terior  and  the  Commissioner. 

The  term  for  which  a  patent  was  valid  wras  fourteen 
years  originally,  but  in  1870  it  was  made  seventeen 
years.  It  is  competent  for  Congress  to  extend  the 
time  of  a  patent,  whether  application  be  made  before 
or  after  the  expiration  of  the  original  term.  In  1836 
the  power  to  extend  for  seven  years  if  the  patentee 
had  failed  to  receive  a  suitable  return  for  his  time, 
ingenuity,  and  expense,  was  conferred  on  a  Board,  con 
sisting  of  the  Secretary  of  State,  the  Commissioner  of 
Patents,  and  the  Solicitor  of  the  Treasury.  But  such 
extension  must  be  granted  before  the  expiration  of 
tho  time  for  which  the  patent  was  originally  issued. 
Since  1848  the  power  to  extend  in  such  cases  has  been 
exercised  by  the  Commissioner. 

Prior  to  the  formation  of  the  Constitution  the  issu 
ing  of  patents,  as  well  as  the  granting  of  copyrights, 
was  lodged  in  the  several  States.  But  while  copyrights 
were  granted,  at  least  in  some  of  the  States,  by  general 
legislation,  no  patents  were  issued  except  by  special 
legislative  acts.1 

When  application  is  made  for  a  patent,  a  model  of 
the  article  is  required  to  be  deposited  in  the  Patent 
Office.  There  has  gradually  been  gathered  in  this  way 
a  vast  collection  of  models  and  specimens,  making 
the  Patent  Office  at  Washington  a  place  of  resort  to 


1  Curtis,  II,  p.  339. 


1.  VIII.  8.  PATENTS. 


123 


most  who  visit  the  national  Capital.  In  1836  the  build 
ing  in  which  these  were  contained  was  burned,  and 
many  of  the  models  were  destroyed ;  but  Congress  made 
an  appropriation  of  one  hundred  thousand  dollars  to 
procure  duplicates  of  those  which  were  the  most  valu 
able.  The  present  buildings  extend  over  two  entire 
blocks  of  the  city  of  Washington. 

Patents  may  be  granted  for  designs  and  trade-marks, 
as  well  as  for  machines.  Designs  may  be  patented  for 
three  years  and  six  months,  for  seven  years,  or  for 
fourteen  years;  and  trade-marks  may  be  patented  for 
thirty  years. 

The  applicant  for  a  patent  must  make  oath  that  he 
believes  himself  to  be  the  original  inventor  of  that  for 
which  he  seeks  a  patent;  he  must  file  a  full  description 
of  the  same,  and.  in  all  cases  admitting  it,  must  present 
drawings  and  a  model.  A  prior  patent  in  a  foreign 
country  does  not  debar  him  from  receiving  a  patent 
here,  provided  the  invention  shall  not  have  been  intro 
duced  into  public  use  in  the  United  States  for  more 
than  two  years  prior  to  the  application. 

If  one  has  made  a  discovery  or  invention,  but  wishes 
to  mature  it,  he  may  file  a  caveat,  setting  forth  its  char 
acter,  and  praying  for  protection  of  his  right  until  he 
can  mature  the  invention.  Should  another  apply  with 
in  a  year  for  a  patent  covering  the  same  ground,  notice 
is  given  to  the  first  applicant,  who  must  file  his  de 
scription,  etc.,  within  three  months. 

The  fees  in  the  Patent  Office  are,  on  filing  the  appli 
cation  for  a  patent,  fifteen  dollars;  on  issuing  the  pat 
ent,  twenty  dollars;  on  filing  a  caveat,  ten  dollars;  on 
application  for  extension  of  a  patent,  fifty  dollars;  on 
granting  an  extension,  fifty  dollars.  The  fees  for  pat 
ents  for  designs  are,  for  three  years  and  a  half,  ten  dol 
lars  ;  for  seven  years,  fifteen  dollars :  for  fourteen  years, 
thirty  dollars.  The  fee  for  protection  for  a  trade-mark 
is  twenty-five  dollars.  The  first  law  regulating  patents, 


124  THE  CONSTITUTION.  1.  VIII.  8. 

passed  in  1790,  made  the  fees  very  small — about  four  dol 
lars.  But  in  1793  it  was  provided  that  every  inventor 
should  pay  thirty  dollars  before  presenting  his  petition. 
The  receipts  of  the  Patent  Office  are  usually  more 
than  the  expenditures,  though  there  are  exceptional 
years.  Over  330,000  applications  for  patents  have  been 
filed  since  1836,  and  about  219,000  patents  have  been 
granted.  Comparing  the  years  1840  and  1877,  we  find 
a  very  remarkable  increase.  Thus  in  1840  the  applica 
tions  were  765,  and  in  1877  the  number  was  20,308;  in 
1840,  patents  issued,  473;  in  1877  the  number  was 
13,619;  in  1840  the  caveats  filed  were  228;  in  1877 
they  were  2,809 ;  in  1840  the  receipts  and  expenditures 
were,  respectively,  $38,056  and  $39,020;  in  1877  they 
were  $732,342  and  $613,152,  the  excess  of  the  receipts 
over  the  expenditures  being  $119,190. 

The  Commissioner  of  Patents  makes  an  annual  re 
port,  giving,  among  other  tilings,  a  list  and  description 
of  all  patents  granted,  with  the  names  of  the  patentees. 
Drawings  of  all  the  inventions  are  also  published. 
These  Patent  Office  Reports  now  form  many  volumes, 
and  constitute  a  record  of  the  industrial  progress  of  the 
country.  For  a  number  of  years  prior  to  1863,  one  vol 
ume  of  the  annual  report  was  devoted  to  Agriculture ; 
but  in  1862  a  Department  of  Agriculture  was  estab 
lished,  with  a  Commissioner  at  the  head  of  it;  and  an 
annual  report  on  Agriculture  is  issued  by  this  Commis 
sioner.  In  1871  the  publication  of  the  specifications 
and  engravings  was  discontinued,  in  connection  with 
the  annual  report  of  the  Commissioner  of  Patents,  and 
a  weekly  Gazette  substituted. 

Patents  are  assignable,  but  the  assignment  must  be 
recorded  in  the  Patent  Office.  All  patentees,  and  those 
making  or  selling  patented  articles  under  them,  must 
cause  the  word  "  patented,"  with  the  date  of  the  patent, 
to  be  affixed  to  each  article,  that  the  public  may  have 
notice  of  its  character. 


1.  VIII.  0.  PIRACY.  125 

Clause  0. — To  constitute  tribunals  inferior  to  the  Su 
preme  Court. 

The  Constitution  itself  provides  for  the  Supreme 
Court  (Art.  Ill),  but  leaves  to  Congress  the  question 
of  the  inferior  courts.  Congress,  at  its  first  session,  es 
tablished  two  tribunals  inferior  to  the  Supreme  Court, 
called  the  Circuit  and  District  Courts;  and  these  three 
still  constitute  the  judiciary  of  the  United  States.  In 
1855  the  Court  of  Claims  was  established,  which  hears 
and  determines  claims  on  the  government.  All  these 
will  be  considered  under  Article  III. 

Clause  10. —  To  define  and  punish  piracies  and  felonies 
committed  on  tfie  high  seas,  and  offenses  against  the  law 
of  nations. 

Piracy  is  robbery  at  sea.  The  common  law  recognizes 
and  punishes  it  as  an  offense  against  the  universal  law 
of  nations;  a  pirate  being  deemed  an  enemy  of  the  hu 
man  race.  The  Continental  Congress,  in  1781,  declared 
death  to  be  the  punishment  for  piracy.  In  1790  an  act 
was  passed  by  Congress  providing  for  the  same  punish 
ment.  In  1820  Congress  passed  an  act  which  declared 
it  to  be  piracy  to  land  on  a  foreign  shore  and  seize  ne 
groes  or  mulattoes,  or  decoy  them  on  board  vessels,  with 
intent  to  make  them  slaves. 

At  common  law  that  was  considered  felony  which  oc 
casioned  the  forfeiture  of  lands1  and  goods,  and  for 
which  the  punishment  of  death  might  also  be  inflicted. 
Capital  punishment  does  not  necessarily  enter  into 
the  definition  of  felony,  yet  the  idea  of  felony  is  so 
generally  connected  with  that  of  capital  punishment 
that  it  is  difficult  to  separate  them.1 

By  high  seas  is  meant,  in  general  terms,  the  ocean, 
including  the  waters  along  the  coast  beyond  low-water 
mark. 


tiffany,  p.  241. 


126  THE  CONSTITUTION.  1.  VIII.  11. 

A  nation  is  responsible  for  its  citizens,  and  must  pun 
ish  them  if  they  interfere  with  the  rights  of  other  na 
tions  ;  otherwise  there  will  be  retaliation,  and  friendly 
relations  will  be  disturbed.  The  Constitution,  there 
fore,  gives  to  Congress  authority  to  define  and  punish 
offenses  against  the  law  of  nations. 

Clause  11. — To  declare  war,  grant  letters  of  marque 
and  reprisal,  and  make  rules  concerning  captures  on  land 
and  water. 

The  power  to  declare  war  belongs  to  the  sovereignty 
of  a  nation.  It  is  one  of  the  highest  acts  which  any 
government  can  perform,  involving  interests  of  the 
greatest  importance,  and  affecting  the  property  and 
lives  of  the  people.  In  Great  Britain  the  power  to  de 
clare  war  is  the  exclusive  prerogative  of  the  Crown. 
Mr  Pinckney  proposed  in  the  Convention  that  it 
should  be  in  the  Senate;  so  Mr.  Hamilton  also;  Mr. 
Butler  proposed  that  it  should  be  in  the  President. 

In  one  of  the  two  wars  in  which  the  United  States 
has  been  engaged  there  was  a  formal  declaration  of 
war;  in  the  other,  war  was  recognized  as  already  exist 
ing.  Thus,  in  1812,  it  was  enacted,  "That  war  be  and 
the  same  is  hereby  declared  to  exist  between  the  United 
Kingdom  of  Great  Britain  and  Ireland  and  the  depend 
encies  thereof,  and  the  United  States  of  America  and 
their  territories."1  And,  in  1846,  the  preamble  of  the 
act  of  Congress  says,  "  Whereas,  by  the  act  of  the  Re 
public  of  Mexico,  a  state  of  war  exists  between  that 
government  and  the  United  States."  In  1798  Congress 
declared  the  United  States  to  be  freed  and  exonerated 
from  the  stipulations  of  the  treaties  with  France,  be 
cause  that  power  had  repeatedly  violated  the  treaties 


1  The  act  is  entitled  "  An  Act  declaring  war  between  the  United 
Kingdom  of  Great  Britain,  etc.,  and  the  United  States  of  America 
and  their  territories." 


1.  VIII.  11.         THE  POWER  TO  DECLARE  WAR.  127 

and  refused  all  reparation.  A  few  days  later  an  act 
was  passed,  authorizing  the  President  to  instruct  the 
commanders  of  armed  vessels  to  capture  any  French 
armed  vessels. 

In  the  case  of  Great  Britain  only,  was  there  a  formal 
declaration  of  war  by  Congress.  In  the  other  cases  a 
state  of  hostilities  was  recognized,  making  hostile  meas 
ures  on  our  part  necessary.  The  war  of  the  Southern 
Rebellion  was  neither  declared  nor  formally  recognized, 
although  hostilities  commenced  some  months  before 
Congress  met.  The  rebellion  as  an  existing  fact  is 
scarcely  alluded  to  in  any  of  the  several  acts  passed 
at  the  special  session  convened  in  July,  1861.  The 
language  is  hypothetical :  "  Whenever  it  shall,  in  the 
judgment  of  the  President,  by  reason  of  unlawful  com 
binations  of  persons  in  opposition  to  the  laws  of  the 
United  States,  become  impracticable  to  execute  the 
revenue  laws,"  etc.  "If  two  or  more  persons  within 
any  State  or  Territory  shall  combine  together  to  over 
throw  the  government  of  the  United  States,"  etc.  There 
is  an  act  to  provide  for  the  payment  of  the  militia  and 
volunteers  called  into  the  service  of  the  United  States, 
but  against  what  enemy  the  act  does  not  say.  The  most 
distinct  recognition  of  the  rebellion  is  in  a  section  of 
an  act  to  increase  the  military  establishment  of  the 
United  States.  It  is  declared  that  this  increase  is  "for 
service  during  the  existing  insurrection  and  rebellion." 
So  in  the  preamble  to  an  act  for  calling  out  the  national 
forces,  passed  March  3d,  1863. 

The  word  marque  signifies  landmark  or  boundary,  and 
letters  of  marque  denote  the  commission  issued  to  a 
private  person,  authorizing  him  to  pass  the  frontier  and 
take  the  persons  or  property  of  the  subjects  of  another 
nation  from  which  injury  has  been  received.  The  word 
reprisal,  meaning  a  retaking,  indicates  the  purpose  for 
which  the  commission  is  issued.  A  vessel  bearing  such 
letters  is  called  a  privateer.  Without  this  authority 


128  THE  CONSTITUTION.  1.  VIII.  12. 

the  seizing  of  men  and  goods  would  be  piracy.  The 
law  of  nations  recognizes  the  right  of  one  nation  to 
take  this  mode  of  obtaining  redress  from  another. 
Oftentimes  letters  of  marque  and  reprisal  are  issued 
before  a  declaration  of  war.  They  may  prevent  a  war, 
or  they  may  occasion  it. 

The  rules  concerning  captures  are  not  limited  to  those 
made  beyond  the  nation's  territory,  but  apply  also  to 
the  property  of  enemies  found  within  the  territory. 
The  Supreme  Court  has  decided  that  these  rules  are 
an  express  grant  to  Congress  of  the  power  of  confisca 
ting  enemy's  property  found  within  the  territory  at  the 
declaration  of  war.1 

Clause  12. —  To  raise  and  support  armies,  but  no  appro 
priation  of  money  to  that  use  shall  be  for  a  longer  term 
than  tivo  years. 

Under  the  Articles  of  Confederation,  Congress  could 
declare  war,  but  they  could  not  raise  armies.  They  had 
power  only  "  to  agree  upon  the  number  of  land  forces, 
and  to  make  requisitions  from  each  State  for  its  quota, 
in  proportion  to  the  number  of  white  inhabitants  of 
such  State."  2  "  The  experience  of  the  whole  country, 
during  the  Revolutionary  War,  established,  to  the  satis 
faction  of  every  statesman,  the  utter  inadequacy  and 
impropriety  of  this  system  of  requisition.  It  was 
equally  at  war  with  economy,  efficiency,  and  safety."3 

This  clause  gives  the  power  to  raise  and  support  a 
standing  army,  or  "the  military  peace  establishment 
of  the  United  States,"  and  the  large  armies  necessary 
in  times  of  war.  Three  times  in  our  national  history, 
since  the  war  of  the  American  Revolution,  has  it  been 
necessary  to  call  out  large  bodies  of  men :  in  the  war 
with  Great  Britain  in  1812,  in  that  with  Mexico  in 


1  8  Cranch,  p.  110.  2  Articles  of  Confederation,  Art.  IX. 

3  Judge  Story. 


1.  vi  IT.  12.  THE  REGULAR  ARMY.  129 

1846,  and  during  the  late  rebellion.  The  number  of  men 
called  into  the  service  of  the  government  in  the  war  of 
the  rebellion  was  vastly  greater  than  in  either  of  those 
preceding.  There  were  over  a  million  of  men  in  the 
Army  of  the  United  States  at  the  close  of  the  rebellion. 

There  was  a  small  standing  army  at  the  time  the 
Constitution  was  formed.  The  organization  has  been 
continued  to  this  time.  By  act  of  Congress  of  Juty, 
1866,  the  regular  army  was  to  consist  of  five  regiments 
of  artillery,  ten  of  cavalry,  and  forty-five  of  infantry. 
Of  general  officers  there  were  one  General,  one  Lieu- 
tenant-General,  five  Major-Generals,  and  ten  Brigadier- 
Generals.  The  army  has  been  largely  reduced  since 
1866.  In  1871  it  consisted  of  30,000  men,  and  in  1874 
it  was  reduced  to  25,000.  It  was  also  provided  that  no 
new  appointments  should  be  made  of  Major-Generals 
or  of  Brigadier-Generals  till  the  number  should  be  be 
low  three  and  six  respectively;  and  that  then  the  num 
ber  of  Major-Generals  should  not  exceed  three,  or  that 
of  Brigadier-Generals  exceed  six. 

It  was  also  provided  that  the  offices  of  General  and 
Lieutenant-General  should  cease  with  the  present  of 
ficers.  The  office  of  Lieutenant-General  was  created  in 
1798,  and  General  Washington  received  the  appoint 
ment.  The  office  of  General  was  created  in  1799,  and 
abolished  in  1802.  In  1855,  the  office  of  Lieutenant- 
General  was  revived  that  it  might  be  conferred  by 
brevet  on  General  Winfield  Scott.  In  1864  General 
Ulysses  S.  Grant  was  appointed  Lieutenant-General, 
and  became  the  highest  military  officer  under  the  Pres 
ident.  The  office  of  General  was  revived  in  1866,  and 
General  Grant  was  appointed  to  the  office.  Major-Gen 
eral  William  T.  Sherman  was  then  appointed  Lieuten 
ant-General.  On  the  election  of  General  Grant  to  the 
Presidency,  Lieutenant-General  Sherman  was  made  Gen 
eral,  and  Major-General  Philip  .H.  Sheridan  Lieutenant- 
General. 


130  THE  CONSTITUTION.  1.  VIII.  13. 

The  appropriation  is  limited  to  two  years,  which  is 
the  Congressional  term.  This  gives  the  virtual  control 
of  the  army  to  the  people. 

Clause  13. — To  provide  and  maintain  a  navy. 

There  was  no  opposition  in  the  Convention  to  giving 
to  Congress  this  power,  but  in  some  of  the  State  Conven 
tions  much  hostility  was  manifested.  The  Department 
of  the  Navy  was  not  established  till  1798;  the  general 
charge  of  the  naval  forces  and  the  matters  pertaining 
to  naval  affairs  having  been  up  to  that  time  committed 
to  the  Department  of  War,  which  had  been  established 
in  1789.  It  was  not  till  the  brilliant  naval  achieve 
ments  during  the  war  with  Great  Britain  that  all 
jealousy  disappeared,  and  the  desire  to  make  our  navy 
equal  to  that  of  other  nations  was  manifested  by  the 
whole  nation.  With  such  an  immense  sea-coast  on  both 
oceans,  and  with  so  great  a  commerce  with  all  nations, 
the  United  States  needs  a  strong  naval  force  for  the 
protection  of  our  maritime  interests. 

The  Navy  Department  has  been,  from  its  establish 
ment  in  1798,  under  the  charge  of  a  Secretary.  In 
July,  1861,  provision  was  made  for  an  Assistant  Secre 
tary,  but  the  office  was  abolished  in  March,  1869. 

By  the  report  of  the  Secretary,  in  November,  1876, 
the  Navy  consisted  of  146  ships  of  all  classes.  Exclu 
sive  of  howitzers  and  gatlings.  they  carry  1142  guns. 
Of  these  vessels,  75  are  in  actual  use. 

The  number  of  persons  authorized  to  be  enlisted 
into  the  Navy,  including  seamen,  landsmen,  and  me 
chanics,  as  also  apprentices  and  boys,  is  seven  thou 
sand  five  hundred.  The  Marine  Corps,  which  consists  of 
those  who  are  trained  to  serve  on  land  as  well  as  on 
vessels  of  war,  numbers  twenty-five  hundred  privates, 
with  nearly  seven  hundred  officers,  including  musi 
cians.  The  highest  officer  of  the  Marines  has  the  rank 
and  pay  of  a  Brigadier-General. 


l.VIII.  14.  THE   NAVY.  131 

The  officers  of  the  Navy  are  as  follows,  with  their 
rank  corresponding  to  that  of  officers  of  the  Army: 

Navy.  Army. 

Admiral.  General. 

Vice- Admiral.  Lieutenant-General. 

Rear-Admiral.  Major-General. 

Commodore.  Brigadier-General. 

Captain.  Colonel. 

Commander.  Lieutenant-Colonel. 
Lieutenant-Commander.          Major. 

Lieutenant.  Captain. 

Master.  First  Lieutenant. 

Ensign.  Second  Lieutenant. 

Until  1862,  the  office  of  Captain  was  the  highest 
recognized  by  law.  A  Captain  commanding  two  or 
more  ships  was  called  a  Commodore  by  custom,  and 
this  title,  when  once  applied  to  an  officer,  was  usually 
continued.1  In  1862  the  offices  of  Rear-Admiral  and 
Commodore  were  created,  in  1864  that  of  Vice- Admiral, 
and  in  1866  that  of  Admiral.  By  act  of  January  24th, 
1873,  Congress  provides  that  when  the  offices  of  Ad 
miral  and  Vice- Admiral  become  vacant,  the  grades 
shall  cease  to  exist.  The  present  Admiral  (1877)  is 
David  D.  Porter;  and  the  Vice- Admiral,  Stephen  C. 
Rowan.  There  are  twelve  Rear-Admirals  and  twenty- 
five  Commodores. 

Clause  14.—  To  make  rules  for  the  government  and 
regulation  of  the  land  and  naval  forces. 

The  power  to  declare  and  carry  on  war  involves  that 
of  providing  armies  and  navies,  and  that  of  governing 
the  forces  thus  raised.  Rules  for  the  government  of 
these  forces  have  been  made  by  Congress  in  accord 
ance  with  this  clause.  In  1806,2  an  act  was  passed 


'Gillet's  Federal  Government,  p.  335.        2  April  10th. 


132  THE  CONSTITUTION.  1.  VIII.  14. 

establishing  the  Rules  and  Articles  of  War  for  the 
government  of  the  Army.  Every  officer  must  subscribe 
these  articles,  in  number  a  hundred  and  twenty-eight; 
they  are  read  to  every  recruit  at  the  time  of  enlist 
ment,  and  they  are  read  and  published  every  six  months 
to  every  garrison,  regiment,  troop,  or  company. 

An  act  for  the  government  of  the  Navy  was  first 
passed  in  1799,1  but  it  was  repealed  the  next  year  and 
a  new  one  passed.2  The  rules  now  in  force  were  enacted 
in  1862.3  For  minor  offenses  the  commanding  officer 
may  inflict  such  punishments  as  reprimand,  suspen 
sion  from  duty,  arrest  or  confinement,  neither  of  which 
shall  continue  longer  than  ten  days,  except  a  further 
period  be  necessary  to  bring  the  offender  to  a  Court 
Martial.  For  greater  offenses,  both  in  the  army  and 
navy,  a  trial  is  held  before  a  Court  Martial,  and  such 
punishments  may  be  inflicted  as  the  Court  may  pro 
nounce,  even  to  the  taking  of  life.  Until  1850,  flog 
ging  was  one  of  the  punishments  inflicted  in  the  navy, 
but  by  act  of  the  twenty-eighth  of  September  of 
that  year  it  was  abolished  in  the  navy  and  on  board 
vessels  of  commerce.  Flogging  in  the  army  was  pro 
hibited  in  1812,  but  in  1833  an  exception  was  made 
in  the  case  of  desertion.  In  1861,4  however,  it  was 
abolished. 

Having  thus  two  classes  of  Courts,  civil  and  military, 
each  of  which  is  clothed  with  authority  to  sentence  to 
the  severest  punishments,  the  country  will  be  liable 
to  a  conflict  of  jurisdiction,  especially  in  time  of  war. 
But  it  must  not  be  forgotten  that  the  two  Courts  are 
alike  established  by  law.  They  owe  their  authority  to 
the  same  source.  The  Court  Martial  has  no  power 
save  what  is  given  to  it  by  Congress  in  accordance 
with  the  Constitution,  and  within  its  own  jurisdiction 
its  power  is  as  legitimate  as  that  of  the  civil  Court. 


March  2d.       2  April  23d,  1800.       3Jnly  17th.       4  August  5th. 


1.  VIII.  15.  THE  MILITIA.  133 

Clause  15. — To  provide  Jor  calling  forth  the  militia  to 
execute  the  laws  of  the  Union,  suppress  insurrections, 
and  repel  invasions. 

Clause  16.  —  To  provide  for  organizing,  arming,  and 
disciplining  the  militia,  and  for  governing  such  part  of 
them  as  may  be  employed  in  the  service  of  the  United 
States,  reserving  to  the  States  respectively  the  appoint 
ment  of  the  officers,  and  the  authority  of  training  the 
militia  according  to  the  discipline  prescribed  by  Congress. 

The  militia  are  distinguished  from  the  regular  army. 
They  are  the  citizen  soldiers  of  the  country,  liable  to  be 
called  out  in  cases  of  emergency.  These  clauses  virtu 
ally  give  Congress  the  whole  power  in  regard  to  the 
militia.  In  1792 l  an  act  was  passed  "to  provide  for 
the  national  defense  by  establishing  a  uniform  militia 
throughout  the  United  States."  It  provided  for  the  en 
rolling  of  "  every  free  able-bodied  white  male  citizen 
of  the  respective  States"  between  the  ages  of  eighteen 
and  forty -five.  The  act  of  March  2d,  1867,  provided 
for  the  enrolling  of  negroes  by  striking  out  the  word 
"white"  from  the  act  of  1792.  In  1863,2  Congress  en 
acted  that  all  citizens,  and  those  who  have  declared 
their  purpose  to  become  such,  between  the  ages  of 
twenty  and  forty-five,  shall  constitute  the  national 
forces,  and  shall  be  liable  to  perform  military  duty  in 
the  service  of  the  United  States  when  called  out  by 
the  President  for  that  purpose. 

A  law  providing  for  calling  forth  the  militia  in 
accordance  with  Clause  15  was  passed  in  1792. 3  An 
amended  act  was  passed  in  1795,4  which  is  still  in 
force.  This  law  authorized  the  President  to  call  out 
the  militia,  for  the  purposes  specified,  as  he  might 
judge  necessary.  The  militia,  when  in  the  service  of 
the  United  States,  were  to  be  subject  to  the  same 


May  8th.       2  March  3d.       3  May  2d.       4  February  28th. 


134  THE  CONSTITUTION.  1.  V11I.  16. 

articles  of  war  as  the  regular  troops,  and  their  time 
of  service  could  not  exceed  three  months  in  any  one 
year.  In  1862 l  this  time  was  extended  to  nine  months; 
and  it  was  provided,  if  the  militia  had  not  been  en 
rolled  in  any  State,  that  the  President  might  make 
all  necessary  rules  and  regulations  for  doing  it. 

The  militia  have  been  called  out  three  times  in  the 
history  of  the  country.  The  first  was  at  the  insurrec 
tion  in  the  western  counties  of  Pennsylvania,  known 
as  the  ''Whisky  Rebellion."  A  portion  of  the  inhab 
itants  had  opposed  the  execution  of  the  laws  imposing 
duties  on  domestic  spirits,  and  this  opposition  was  at 
length  carried  so  far  as  to  render  necessary  the  inter 
position  of  force.  On  the  seventh  of  August,  1794,  the 
President  issued  a  proclamation,  commanding  the  in 
surgents  to  disperse,  and  at  the  same  time  made  requi 
sitions  on  the  governors  of  New  Jersey,  Pennsylvania, 
Maryland,  and  Virginia,  for  their  quotas  of  twelve 
thousand  men.  The  number  was  afterwards  increased 
to  fifteen  thousand.  On  the  twenty-fifth  of  September 
another  proclamation  was  issued,  declaring  the  neces 
sity  of  putting  the  force  in  motion.  By  this  energetic 
action  of  the  President  the  insurrection  was  quelled 
without  bloodshed.2  In  his  next  message  to  Congress 
the  President  recommended  a  revision  of  the  militia 
law,  which  was  made  in  1795. 

The  militia  were  again  called  out  in  1812,  in  the  war 
with  Great  Britain.  In  this  case  it  was  to  "repel 
invasions." 

Though  the  President  was  authorized,  by  act  of 
Congress  May  13th,  1846,  to  employ  the  militia,  as  well 
as  the  naval  and  military  forces,  and  to  accept  the  serv 
ices  of  volunteers,  in  the  prosecution  of  the  war  with 


TJuly  17th. 

2Marshall's    Life   of   Washington,   Vol.   V,   Chap,   viii ;    Pitkin's 
Pol.  and  Civil  Hist,  of  the  U.  S.,  Vol.  IT,  Chap,  xxiii. 


1.  VIII.  17.  THE  DISTRICT  OF   COLUMBIA..  135 

Mexico,  the  militia  were  not  called  out.  The  troops 
furnished  by  the  several  States  were  all  volunteers. 

The  third  instance  in  which  the  militia  were  called 
out  was  in  the  war  of  the  rebellion  in  1861.  The  first 
•jail  was  by  proclamation  of  President  Lincoln  on  the 
fifteenth  of  April,  1861,  for  "the  militia  of  the  several 
States  of  the  Union  to  the  aggregate  number  of  seventy- 
five  thousand,  in  order  to  suppress  said  combinations, 
and  to  cause  the  laws  to  be  duly  executed."  The  Pres 
ident,  by  order  dated  August  4th,  1862,  called  for  a 
draft  of  300,000  militia  to  serve  for  nine  months.  And 
again  June  15th,  1863,  he  called  for  100,000  militia  from 
the  States  of  Maryland.  Pennsylvania,  Ohio,  and  West 
Virginia,  to  serve  six  months.  Thus  in  the  late  civil 

o 

war  there  were  three  calls  for  the  militia  as  such,  to  the 
number  of  475,000  men.  This  was  but  a  small  part  of 
the  number  in  the  service,  the  others  being  called  for 
as  volunteers.  The  whole  number  mustered  into  the 
service  of  the  United  States  in  the  four  years  from 
April,  1861,  was  2,656,553.' 

Clause  17. —  To  exercise  exclusive  legislation  in  all  cases 
whatsoever,  over  such  district  (not  exceeding  ten  miles 
square)  as  may,  by  cession  of  particular  States,  and  the 
acceptance  of  Congress,  become  the  seat  of  the  government 
of  the  United  States,  and  to  exercise  like  authority  over 
all  places  purchased  by  the  consent  of  the  legislature  of 
the  State  in  which  the  same  shall  be,  for  the  erection  of 
forts,  magazines,  arsenals,  dock- yards,  and  other  needful 
buildings. 

The  district  for  the  government  of  which  provision 
is  here  made  was  ceded  to  the  United  States  by  Mary 
land  and  Virginia,  and  accepted  by  Congress  July  16th, 
1790.  Maryland  made  the  cession  of  that  part  lying 
east  of  the  Potomac  in  December,  1788,  and  Virginia 


1  Report  of  Secretary  of  War,  Nov.,  1866. 


136  THE  CONSTITUTION.  1.  VIII.  17. 

the  part  west  of  the  Potomac  in  December,  1789.  The 
act  of  Congress  accepting  the  cession  provides  "that  a 
district  of  territory  not  exceeding  ten  miles  square,  to 
be  located  on  the  river  Potomac,  at  some  place  between 
the  mouths  of  the  Eastern  Branch  and  Connogochegue, 
be,  and  the  same  is  hereby  accepted,  for  the  permanent 
seat  of  government  of  the  United  States."  The  precise 
location  was  to  be  determined  under  the  direction  of 
the  President  by  commissioners  to  be  appointed  by  him. 

The  act  further  provided  that  prior  to  the  first  Mon 
day  of  December  of  that  year — 1790 — all  the  govern 
ment  offices  should  be  removed  to  Philadelphia  from 
New  York,  where  Congress  was  then  in  session,  and 
should  remain  there  until  the  first  Monday  of  Decem 
ber,  1800,  when  they  were  to  be  removed  to  the  per 
manent  seat  of  government.  The  Continental  Congress 
held  their  sessions  in  New  York  from  January,  1785, 
till  the  Constitution  was  adopted,  and  the  first  Congress 
under  the  Constitution  held  the  first  two  of  its  three 
sessions  there.  Thus  the  seat  of  government  was  at 
New  York  from  March  4th,  1789,  till  the  close  of  the 
second  session  of  the  first  Congress,  then  at  Philadel 
phia  for  ten  years,  and  has  been  at  Washington  since 
December,  1800. 

The  original  District  of  Columbia  was  ten  miles 
square,  its  boundary  lines  running  N.  E.,  S.  E.,  S.  W., 
and  X.  W.  It  was  divided  into  two  counties,  Wash 
ington  east  of  the  Potomac,  and  Alexandria  west.  In 
July,  1846,  the  latter  was  retroceded  to  Virginia. 

The  necessity  of  exclusive  power  on  the  part  of  Con 
gress  at  the  seat  of  government  is  abundantly  manifest. 
Without  it,  the  officers  of  the  government  might  be 
interrupted  in  their  duties,  the  public  archives  and 
other  property  injured,  and  Congress  itself  insulted. 
When  the  Continental  Congress  was  in  session  at 
Philadelphia,  the  building  where  they  were  in  session 
was  surrounded  by  some  mutinous  soldiers,  clamoring 


1.  VIII.  17.  THE  DISTRICT  OF  COLUMBIA.  137 

for  their  pay.  The  executive  government  of  that  State 
not  giving  to  Congress  adequate  protection,  that  body 
immediately  adjourned  to  Princeton,  N.  J. 

No  less  necessary  is  it  that  the  general  government 
should  have  exclusive  control  of  the  places  where  forts, 
arsenals,  etc.,  are  erected. 

The  district  in  which  the  seat  of  government  is  lo 
cated  is  obtained  by  cession  from  the  State.  The  other 
places  mentioned  in  the  clause  are  purchased  with  the 
consent  of  the  legislature  of  the  State  where  they  are 
located.  In  whichever  manner  acquired,  the  districts 
are  under  the  exclusive  control  of  Congress.  They  hold 
to  the  government  the  same  relation  as  the  territories 
do.  There  is  no  transfer  of  political  power  from  the 
State  to  the  general  government.  The  latter  does  not 
exercise  legislation  by  virtue  of  any  authority  derived 
from  the  States,  but  by  virtue  of  the  general  powers 
granted  by  the  Constitution.  It  was  claimed,  in  a  case 
before  the  Supreme  Court,  that  Congress,  when  acting 
under  this  clause,  must  be  considered  as  a  mere  local 
legislature,  and  not  as  administering  the  supreme  law 
of  the  land.  "  But  the  Supreme  Court  held  directly  the 
contrary  —  that  the  power  belonged  to  'Congress  as  the 
legislature  of  the  Union;  for  strip  them  of  that  charac 
ter,  and  they  would  not  possess  it.  In  no  other  charac 
ter  can  it  be  exercised.  *  *  *  Congress  is  not  a 
local  legislature,  but  exercises  this  particular  power, 
like  all  its  other  powers,  in  its  high  character,  as  the 
legislature  of  the  Union.'  " l 

"The  efficiency  of  the  government  is  all  derived 
from  the  Constitution,  and  is  equal  in  all  places  with 
in  its  jurisdiction.  It  is  supreme  every-where.  It  is 
inclusive  of  all  subordinate  governments,  where  there 
are  any,  and  exclusive  where  there  are  none.  It  is 
permanently  exclusive,  if  there  can  be  no  other.  It  is 


'Farrar,  p.  360;    5  Wheaton,  p.  317. 
C.  G.  12, 


1 38  THE  CONSTITUTION.  1.  VIII.  17, 

temporarily  exclusive,  till  a  subordinate  is  instituted. 
It  becomes  exclusive  again,  if  a  subordinate  is  extinct, 
whether  by  right  or  by  wrong ;  and  it  remains  exclusive, 
when  it  is  so,  till  a  subordinate  is  rightfully  restored."1 

As  direct  taxes  are  by  Article  I,  Section  2,  Clause  3, 
to  be  apportioned  among  the  several  States  according 
to  their  respective  numbers,  it  might  be  thought  that 
the  inhabitants  of  the  District  of  Columbia  would  be 
exempt.  But  the  Supreme  Court  has  decided  that  Con 
gress  has  the  power  to  levy  a  direct  tax  on  the  District 
of  Columbia,  and  also  upon  the  territories.  Congress 
is  not  bound  to  do  it,  but  the  power  is  possessed,  quali 
fied  in  the  same  manner  as  in  regard  to  the  States ;  i.  e., 
the  tax  must  be  in  proportion  to  the  population.  A 
direct  tax  was  levied  upon  the  States  in  January,  1815. 
In  February  of  the  same  year  a  tax  was  levied  on  the 
District  of  Columbia.  The  direct  tax  of  $20,000,000 
a  year,  according  to  act  of  August,  1861,  included 
the  District  of  Columbia,  and  all  the  territories  then 
existing. 

In  the  cessions  to  Congress  under  this  clause,  there 
has  generally  been  a  reservation  of  the  right  to  serve 
State  process,  civil  and  criminal,  upon  persons  found 
therein.  Thu,s  these  places  can  not  be  made  sanctuaries 
for  fugitives. 

On  the  sixteenth  of  April,  1862,  slavery  was  abolished 
in  the  District  of  Columbia  by  act  of  Congress.  At  the 
same  session  of  Congress  (the  second  of  the  Thirty- 
seventh  Congress),  an  act  was  passed  declaring  that 
there  should  be  neither  slavery  nor  involuntary  servi 
tude  in  any  of  the  territories  then  existing,  or  which 
should  be  formed  thereafter.  In  the  District  of  Colum 
bia  provision  was  made  to  remunerate  loyal  owners  for 
the  slaves  thus  set  free,  not  exceeding  $300  each  in  the 
aggregate. 


,  p.  363. 


1.  VIII.  18.         THE  DISTRICT  OF  COLUMBIA.  139 

In  1871  a  territorial  government  was  established  for 
the  District.  It  provided  for  a  Governor,  Secretary, 
Council  (upper  legislative  house),  Board  of  Health,  and 
Board  of  Public  Works,  to  be  appointed  by  the  Presi 
dent  and  Senate.  There  was  a  House  of  Delegates  to 
be  elected  by  the  people.  In  1874  the  act  was  repealed, 
and  until  a  new  system  could  be  framed,  the  govern 
ment  was  entrusted  to  three  Commissioners,  to  be  ap 
pointed  by  the  President  and  Senate. 

In  1878  a  new  act  was  passed  placing  the  government 
under  a  Board  of  three  Commissioners;  two  to  be  ap 
pointed  by  the  President  and  Senate  for  three  years ; 
and  the  third,  an  officer  of  the  Corps  of  Engineers  of 
the  army,  to  be  detailed  by  the  President.  These  Com 
missioners  have  general  charge  of  the  municipal  inter 
ests  of  the  District,  appointing  the  police,  firemen, 
school  trustees,  and  all  other  officers.  They  submit 
each  year  to  the  Secretary  of  the  Treasury  a  detailed 
estimate  of  expenses,  which  on  his  approval,  is  trans 
mitted  to  Congress.  If  Congress  approves  the  estimate, 
one-half  the  amount  is  appropriated  from  the  general 
treasury,  and  the  other  half  is  assessed  upon  the  taxa 
ble  property  of  the  District. 

Clause  18. — To  make  all  laws  which  shall  be  neces 
sary  and  proper  for  carrying  into  execution  the  foregoing 
powers,  and  all  other  powers  vested  by  this  Constitution  in 
the  government  of  the  United  States,  or  in  any  department 
or  officer  thereof. 

This,  in  substance,  was  in  Mr.  Pinckney's  plan.  The 
Committee  of  Detail  reported  it  as  it  is  now,  and  so 
did  the  Committee  of  Revision.  There  was  no  opposi 
tion  or  discussion  in  the  Convention,  but  great  oppo 
sition  was  made  in  the  State  Conventions.  Patrick 
Henry  often  speaks  of  it  as  "the  sweeping  clause,"  by 
which  Congress  was  to  overthrow  the  States.  Those 


140  THE   CONSTITUTION.  1.  VIII.  18. 

opposed  to  the  Constitution  assailed  it  with  great 
vehemence,  and  endeavored,  through  the  prejudice  ex 
cited,  to  prevent  the  Conventions  of  the  States  from 
ratifying  the  Constitution.  Mr.  Randolph's  plan  in 
relation  to  the  powers  of  Congress  was  that  "  The  Na 
tional  legislature  ought  to  be  empowered  to  enjoy  the 
legislative  rights  vested  in  Congress  by  the  Confedera 
tion;  and  moreover  to  legislate  in  all  cases  to  which 
the  separate  States  are  incompetent,  or  in  which  the 
harmony  of  the  United  States  may  be  interrupted  by 
the  exercise  of  individual  legislation;  to  negative  all 
laws  passed  by  the  several  States  contravening,  in  the 
opinion  of  the  National  legislature,  the  Articles  of 
Union,  or  any  treaty  subsisting  under  the  authorit}^  of 
the  Union."  This  was  agreed  to  in  Committee  of  the 
Whole.1  The  clause  as  to  the  power  of  Congress  to 
veto  State  laws  was  lost  in  the  Convention,  five  States 
voting  for  it,  and  six  against  it.  Mr.  Madison  ear 
nestly  supported  it. 

Writers  on  Constitutional  Law  agree  that  Congress 
would  have  had  ample  authority  to  make  all  laws 
necessary  and  proper  for  carrying  into  execution  the 
powers  vested  in  the  general  government  by  the  Con 
stitution,  even  if  this  clause  had  not  been  inserted. 
If  the  Constitution  provides  for  a  government,  and  in 
vests  it  with  powers,  it  follows  as  an  unavoidable  in 
ference  that  the  legislative  department  of  that  govern 
ment  can  make  the  laws  needful  for  carrying  those 
powers  into  execution.  Mr.  Madison  says,2  "  Few  parts 
of  the  Constitution  have  been  assailed  with  more  in 
temperance  than  this;  yet,  on  a  fair  investigation  of 
it,  as  has  been  elsewhere  shown,  no  part  can  appear 
more  completely  invulnerable.  Without  the  substance 
of  this  power,  the  whole  Constitution  would  be  a  dead 
letter."  He  proceeds  to  show  the  folly  of  attempting 


1  Elliot,  V,  p.  190.        2  Federalist,  No.  44. 


1.  VIII.  18.  IMPLIED  POWERS.  141 

a  positive  enumeration  of  the  powers  necessary  and 
proper  for  carrying  their  other  powers  into  effect;  that 
"the  attempt  would  have  involved  a  complete  digest 
of  laws  on  every  subject  to  which  the  Constitution  re 
lates;  accommodated,  too,  not  only  to  the  existing 
state  of  things,  but  to  all  the  possible  changes  which 
futurity  might  produce."  No  less  chimerical  would  it 
be  to  enumerate  the  powers  or  means  not  necessary  or 
proper  for  carrying  the  general  powers  into  execution. 

"Had  the  Constitution  been  silent  on  this  head,  there 
can  be  no  doubt  that  all  the  particular  powers  requisite 
as  means  of  executing  the  general  powers  would  have 
resulted  to  the  government  by  unavoidable  implication. 
No  axiom  is  more  clearly  established  in  law,  or  in 
reason,  that  whenever  the  end  is  required,  the  means 
are  authorized.  Wherever  a  general  power  to  do  a 
thing  is  given,  every  particular  power  necessary  for 
doing  it  is  included."  Thus  Mr.  Madison. 

Mr.  Hamilton  uses  similar  language.1  "  It  may  be 
affirmed  with  perfect  confidence  that  the  constitutional 
operation  'of  the  government  would  be  precisely  the 
same  if  these  clauses  were  entirely  obliterated,  as  if 
they  were  repeated  in  every  article.  They  are  only 
declaratory  of  a  truth  which  would  have  resulted  by 
necessary  and  unavoidable  implication  from  the  very 
act  of  constituting  a  federal  government  and  vesting  it 
with  certain  specified  powers." 

Chief  Justice  Marshall  says:  "A  power  vested  carries 
with  it  all  those  incidental  powers  which  are  necessary 
to  its  complete  and  efficient  execution."  This  principle 
has  been  repeatedly  sanctioned  by  the  Supreme  Court, 
and  has  been  acted  on  by  the  general  government  from 
1789  to  the  present  day. 

Judge  Story  says :  "  It  would  be  almost  impractic 
able  if  it  were  not  useless,  to  enumerate  the  various 


1  Federalist,  No.  33. 


142  THE  CONSTITUTION.  1.  VIII.  18. 

instances  in  which  Congress,  in  the  progress  of  the 
government,  have  made  use  of  incidental  and  implied 
means  to  execute  its  powers.  They  are  almost  infinitely 
varied  in  their  ramifications  and  details." 

Nothing  is  plainer  than  that  the  Constitution  was 
intended  to  vest  in  the  general  government  all  the 
powers  which  properly  belong  to  such  a  government, 
and  so  it  has  been  understood  from  the  beginning. 
The  affairs  of  the  nation  could  not  be  carried  on  a 
single  year  if  no  laws  were  enacted  but  such  as  are 
specifically  provided  for  in  the  Constitution.  The  very 
language  of  the  Constitution  in  divers  places  presup 
poses  that  Congress  could  make  laws  for  which  no  spe 
cific  authority  is  given.  Thus,  in  Art.  I,  Sec.  9,  it  is 
provided  that  the  importation  of  slaves  should  not  be 
prohibited  till  1808;  yet  nowhere  does  the  Constitution 
invest  them  with  any  authority  to  prohibit  it  then. 

In  the  same  section  it  is  declared  that,  "The  privi 
leges  of  the  writ  of  habeas  corpus  shall  not  be  suspended, 
unless  when  in  cases  of  rebellion  or  invasion  the  pub 
lic  safety  may  require  it."  But  where  has  the  Consti 
tution  conferred  upon  Congress,  or  any  department  of 
the  government,  any  distinct  power  to  suspend  this 
writ? 

So  also,  "  No  bill  of  attainder  or  ex  post  facto  law  shall 
be  passed."  Such  laws  were  passed  by  the  British 
Parliament,  and  were  not  unknown  in  the  legislation 
of  the  American  States.  Without  this  restriction,  it 
was  evidently  supposed  by  the  framers  of  the  Consti 
tution  that  Congress  might  do  the  same,  although  there 
is  no  clause  granting  such  authority. 

The  same  may  be  said  in  regard  to  granting  titles 
of  nobility,  and  requiring  religious  tests.  The  clauses 
prohibiting  government  from  these  acts  are  manifestly 
limitations  upon  its  powers:  without  the  limitations, 
it  would  have  had  ample  authority  in  both  cases. 
The  First  Amendment  is  of  the  same  nature.  Where 


1.  VIII.  18.  IMPLIED  POWERS.  143 

does  the  Constitution  intimate  any  power  in  either 
department  of  the  government  to  establish  religion,  or 
prohibit  the  freedom  of  speech  or  of  the  press? 

It  is  a  favorite  form  of  speech  with  many  that  the 
general  government  is  one  of  enumerated  powers,  and 
especially  is  this  said  of  the  legislative  department. 
u  The  powers  specifically  granted  to  Congress  are  what 
are  called  'the  enumerated  powers,'  and  are  numbered 
in  the  order  in  which  they  stand,"  says  one  of  the 
Presidents  in  his  message.  Says  another  in  a  veto 
message,  "The  legislative  powers  vested  in  Congress 
are  specified  and  enumerated  in  the  8th  sec.  of  the 
first  Article  of  the  Constitution." 

We  have  seen  that  the  restrictions  expressly  placed 
upon  Congress  by  the  Constitution  presuppose,  in  the 
absence  of  such  restrictions,  the  existence  of  plenary 
powers  to  legislate  for  the  general  welfare.  On  any 
other  supposition  these  prohibitions  are  entirely  devoid 
of  meaning.  From  the  time  of  Washington's  adminis 
tration  to  the  present  day  the  government,  in  all  its 
departments,  has  been  carried  on  as  a  national  gov 
ernment  with  full  powers  of  sovereignty.  Opposition 
to  certain  measures  has  often  been  based  upon  their 
alleged  unconstitutionally ;  but  when  the  political 
party  from  which  the  opposition  came  has  itself  been 
placed  in  power,  it  has  not  hesitated  to  deviate  quite 
as  far  from  the  strict  letter  of  the  Constitution. 

Among  the  acts  which  are  indefensible  on  the  theory 
of  specially  enumerated  powers,  and  which  can  be  sus 
tained  only  on  the  general  doctrine  of  national  sover 
eignty,  may  be  mentioned  the  purchase  of  Louisiana; 
the  embargo  act  of  1807;  the  claim  of  the  general  gov 
ernment  to  be  preferred  as  creditor  not  only  to  private 
citizens,  but  even  to  the  State  authorities ;  grants  of 
lands  for  railroads  and  canals ;  the  annexation  of  Texas ; 
grants  of  lands  for  Agricultural  Colleges;  the  estab 
lishment  of  a  Department  of  Education ;  etc. 


144  THE  CONSTITUTION.  1.  IX.  1. 

"The  most  remarkable  powers,"  says  Judge  Story, 
"which  have  been  exercised  by  the  government,  as 
auxiliary  and  implied  powers,  and  which,  if  any,  go 
to  the  utmost  verge  of  liberal  construction,  are  the 
laying  of  an  unlimited  embargo  in  1807,  and  the 
purchase  of  Louisiana  in  1803,  and  its  subsequent  ad 
mission  into  the  Union  as  a  State.  These  measures 
were  brought  forward,  and  supported,  and  carried  by 
the  known  and  avowed  friends  of  a  strict  construction/' 
"The  friends  of  the  latter  measure  were  driven  to  the 
adoption  of  the  doctrine  that  the  right  to  acquire  ter 
ritory  was  incident  to  national  sovereignty;  that  it  was 
a  resulting  power,  growing  out  of  the  aggregate  powers 
confided  by  the  Constitution ;  that  the  appropriation 
might  justly  be  vindicated  upon  the  ground  that  it 
was  for  the  common  defense  and  general  welfare.'' 

The  people  of  the  United  States  have  ordained  and 
established  the  Constitution  for  the  purpose  of  provid 
ing  for  the  common  defense,  and  promoting  the  gen 
eral  welfare ;  and  whatever  legislation  is  necessary  and 
proper  to  secure  these  ends  is  clearly  within  the  au 
thority  of  Congress,  except  in  those  particulars  which 
the  Constitution  has  expressly  restricted.  Upon  this 
theory  the  government  has  been  administered  from  the 
beginning.  This  has  been  the  practice  of  every  ad 
ministration,  whatever  may  have  been  its  theory. 

Sec.  9,  Clause  1. — The  migration  or  importation  of 
such  persons  as  any  of  the  States  now  existing  shall  think 
proper  to  admit,  shall  not  be  prohibited  by  the  Congress 
prior  to  the  year  one  thousand  eight  hundred  and  eight, 
but  a  tax  or  duty  may  be  imposed  on  such  importation, 
not  exceeding  ten  dollars  for  each  person. 

The  "  persons "  here  mentioned  were  slaves.  The 
clause  permitted  the  slave-trade  till  1808.  As  reported 
by  the  Committee  of  Detail,  the  provision  was  that 
such  importation  should  not  be  prohibited;  there  was 


1.  IX.  1.         SLAVERY  AND  THE  SLAVE-TRADE.  145 

no  limitation  of  time.  It  was  provided  also  in  that  re 
port  that  no  tax  or  duty  should  be  levied.  The  tax  of 
ten  dollars  which  the  Convention  finally  decided  upon 
was  in  fact  never  imposed  by  Congress.  At  the  expira 
tion  of  the  twenty  years  the  further  importation  of 
slaves  was  prohibited  by  an  act  passed  March  2d, 
1807,  to  take  effect  January  1st,  1808. 

When  the  Constitution  was  formed,  no  nation  had 
abolished  the  slave-trade.1  Yet  of  the  thirteen  Ameri 
can  States  all  but  three  had  prohibited  the  importa 
tion  of  slaves.  These  three  were  North  Carolina,  South 
Carolina,  and  Georgia;  and  they  insisted  upon  a  pro 
vision  in  the  Constitution  for  the  admission  of  slaves, 
at  least  for  a  limited  period.  Hence  the  clause  as  it 
appears. 

The  following  is  a  summary  of  the  action  of  our  gov 
ernment  touching  slavery  and  the  slave-trade : 

In  17872  the  Continental  Congress  passed  an  "Ordi 
nance  for  the  government  of  the  Territory  of  the 
United  States  north-west  of  the  river  Ohio,"  which 
provided  that  in  the  Territory  there  should  "  be  neither 
slavery  nor  involuntary  servitude,  otherwise  than  in 
punishment  of  crimes/' 

The  slave-trade  to  foreign  countries  was  prohibited 
in  1794.3 

The  importation  of  slaves  was  prohibited  in  1807,4 
the  law  to  take  effect  January  1st,  1808. 

In  1820 5  the  slave-trade  was  declared  to  be  piracy, 
to  be  punished  with  death. 

Slavery  was  abolished  in  the  District  of  Columbia 
by  act  of  Congress  in  1862,6  and  in  the  Territories  the 
same  year.7 

The  President's  first  proclamation  as  to  emancipation 


1  Great  Britain  abolished  it  March  25th,  1807. 

2  July  13th.  3  March  22d.  4  March  2d.  5  May  15th. 
6  April  16th.         7June  19th. 

C.  G.  13. 


146  THE  CONSTITUTION.  1.  IX.  2. 

of  slaves  in  the  rebel  States  was  issued  September  22d, 
1862.  The  second  proclamation,  emancipating  them,  is 
dated  January  1st,  1863.  The  coastwise  slave-trade  was 
forever  prohibited  by  act  of  July  2d,  1864. 

The  Thirteenth  Amendment  to  the  Constitution, 
abolishing  slavery  throughout  the  United  States  and 
all  places  subject  to  their  jurisdiction,  was  proposed  to 
the  legislatures  of  the  States  by  Congress,  February  1st, 
1865,  and  was  ratified  December  18th,  1865. 

Clause  2. — The  privilege  of  the  writ  of  habeas  corpus 
shall  not  be  suspended,  unless  when  in  cases  of  rebellion 
or  invasion  the  public  safety  may  require  it. 

A  writ  is  a  legal  instrument  or  writing  issued  by  a 
competent  authority,  commanding  the  performance  or 
non-performance  of  some  act  by  the  person  to  whom 
it  is  directed.  These  writs  were  formerly  written  in 
Latin,  and  they  are  often  designated  by  some  impor 
tant  Latin  words  contained  in  them.  The  words  habeas 
corpus  mean  "  you  may  have  the  body ;  "  and  the  writ 
is  issued  by  the  judge  having  competent  authority 
commanding  the  officer  to  bring  the  person  held  in 
confinement  before  the  judge,  that  he  may  inquire  in 
to  the  cause  of  his  imprisonment.  The  object  is  to 
prevent  any  illegal  imprisonment  or  detention ;  and  it 
is  regarded  as  one  of  the  great  bulwarks  of  personal 
liberty.  The  writ  may  be  granted  upon  the  applica 
tion  of  the  person  himself  who  is  restrained  of  his 
liberty,  or  on  the  application  of  another  person  in  his 
behalf.  If,  upon  judicial  inquiry,  he  is  found  to  be 
imprisoned  or  confined  for  sufficient  cause,  he  is  still 
held  in  confinement;  but  if  'it  appears  that  he  has 
been  arrested  illegally,  he  is  set  at  liberty. 

Such  writs  are  issued  not  only  to  release  from  con 
finement  those  who  are  unlawfully  imprisoned,  but 
to  enable  parents  to  get  control  of  their  children 
when  held  in  custody  by  others,  and  to  set  at  liberty 


1.  IX.  2.  THE  WRIT  OF  HABEAS   CORPUS.  147 

sane   persons  who  may  be  confined  under  pretense  of 


The  application  must  be  accompanied  with  an  affi 
davit  that  the  detention  is  contrary  to  law,  and  set 
ting  forth  the  facts  in  the  case.  "Though  the  writ  of 
halicas  corpus  is  a  writ  of  right,  it  is  not  a  writ  of  course; 
and  the  judge  is  not  bound  to  grant  it  except  for 
cause  shown." 

From  the  application  itself  it  may  be  evident  to  the 
judge  that  the  arrest  was  legal  ;  in  which  case  the  writ 
of  Juilieas  corpus  will  not  be  issued. 

The  Constitution  does  not  determine  by  whom  the 
privilege  of  the  writ  of  habeas  corpus  may  be  suspended, 
whether  by  Congress,  or  the  President,  or  both.  The 
more  common  opinion  has  been  that  the  power  be 
longs  to  Congress  and  not  to  the  President.  In  1807, 
a  bill  for  the  suspension  of  the  writ  was  lost  in  the 
House  of  Representatives  after  having  passed  the  Sen 
ate.  The  first  act  passed  by  Congress  to  suspend  the 
writ  was  in  March,  1863.  It  had,  however,  been  pre 
viously  suspended  by  President  Lincoln  (April  27th, 
1861)  in  an  order  to  Lieutenant-General  Scott.  This 
had  reference  to  the  military  line  between  Philadel 
phia  and  Washington.  The  President,  also,  by  procla 
mation,  authorized  the  commander  of  the  forces  on  the 
Florida  coast  to-  suspend  it  on  the  islands  near  'the 
coast.  This  proclamation  was  dated  May  10th,  1861. 
This  action  of  the  President  was  in  accordance  with 
the  opinion  of  the  Attorney-General,  who  is  his  le 
gal  adviser.  Attorney-General  Bates  says;  "If  by  the 
phrase,  the  suspension  of  the  writ  of  habeas  corpus,  we 
must  understand  a  repeal  of  all  power  to  issue  the 
writ,  then  I  freely  admit  that  none  but  Congress  can 
do  it.  But  if  we  are  at  liberty  to  understand  the 
phrase  to  mean,  that  in  case  of  a  great  and  dangerous 
rebellion  like  the  present,  the  public  safety  requires 
the  arrest  and  confinement  of  persons  implicated  in 


148  THE  CONSTITUTION.  1.  IX.  2. 

that  rebellion,  I  as  freely  declare  the  opinion  that  the 
President  has  lawful  power  to  suspend  the  privilege  of 
persons  arrested  under  such  circumstances;  for  he  if? 
specially  charged  by  the  Constitution  with  the  '  public 
safety,'  and  he  is  the  sole  judge  of  the  emergency 
which  requires  his  prompt  action." 

Most  of  those  who  believe  that  the  Constitution 
gives  to  Congress  the  .power  to  suspend  the  writ,  would 
admit  that  in  cases  of  exigency  the  President  might 
exercise  the  power  without  the  authority  of  Congress. 
Thus  Mr.  Mulford  says :  "  Since  the  legislature  can  not 
always  act  with  the  immediate  energy  which  may  be 
demanded,  and  does  not  act  continuously,  in  its  su 
preme  necessity,  in  the  actual  or  in  the  imminent 
peril  of  the  nation,  it  becomes  not  only  the  office  but 
the  imperative  duty  of  the  executive  to  assert  it."1 

In  the  act  of  Congress  passed  March  3d,  1863,  the 
President  was  authorized  to  suspend  the  privilege  of 
the  writ  in  any  case  throughout  the  United  States, 
whenever  in  his  judgment  the  public  safety  should 
require  it.  The  same  act  contained  a  clause  of  indem 
nity  to  the  President  and  those  acting  under  his  orders 
for  any  arrest  or  imprisonment  during  the  existence 
of  the  rebellion.  The  suspension  of  the  writ  of  habeas 
corpus  in  the  recent  rebellion  was,  therefore,  by  the 
authority  of  both  the  legislative  and  executive  depart 
ments  of  the  government. 

The  suspension  of  the  writ  does  not  make  it  unlaw 
ful  for  the  judge  to  issue  the  writ ;  but  the  writ  hav 
ing  been  issued,  it  is  a  sufficient  return,  or  answer,  to 
it  to  say,  that  the  privilege  of  the  writ  had  been  sus 
pended. 

Though  the  writ  of  habeas  corpus  had  never  been  sus 
pended,  either  by  the  Congress  or  the  President,  until 
the  late  rebellion,  it  appears  to  have  been  suspended 


1  The  Nation,  p.  188. 


1.  IX.  3.          -.  BILL  OF  ATTAINDER.  149 

by  military  officers.  "  During  the  administration  of 
President  Washington,  in  the  Pennsylvania  'Whisky 
Insurrection'  of  1794  and  1795,  the  military  authori 
ties  engaged  in  suppressing  it  disregarded  the  writs 
which  were  issued  hy  the  courts  for  the  release  of  the 
prisoners  who  had  been  captured  as  insurgents.  Gen 
eral  Wilkinson,  under  the  authority  of  President  Jef 
ferson,  during  the  Burr  Conspiracy  of  1806,  suspended 
the  privilege  of  this  writ,  as  against  the  Superior 
Court  of  New  Orleans.  General  Jackson  assumed  the 
right  to  refuse  obedience  to  the  writ  of  habeas  corpus 
first  in  New  Orleans,  in  1814,  as  against  the  authority 
of  Judge  Hall,  when  the  British  army  was  approach 
ing  that  city;  and  afterward,  in  Florida,  as  against 
the  authority  of  Judge  Fromentin."1 

Clause  3. — No  bill  of  attainder  or  ex  post  facto  law 
shall  be  jjassed. 

A  bill  of  attainder  is  a  legislative  act  inflicting 
death  or  other  punishment  without  a  judicial  trial. 
'if  the  punishment  is  less  than  death,  the  act  is  now 
called  in  England  a  bill  of  pains  and  penalties.  The 
legislature  in  passing  such  a  bill  assumes  the  functions 
of  the  judicial  department  of  the  government;  it  pro 
nounces  sentences  and  inflicts  punishments  not  deter 
mined  by  previous  law;  and  it  ordinarily  gives  the 
person  accused  no  opportunity  of  defending  himself. 
"Such  was  the  bill  of  attainder  in  England,  and  such 
was  it  in  this  country  at  the  time  of  the  adoption  of 
the  Constitution.  By  that  the  whole  suBject  was  abol 
ished  and  prohibited  entirely  and  forever."2 

An  ex  post  facto  law  is  one  which  makes  an  act 
criminal  which  was  not  criminal  when  committed. 


1  Halleck's  International  Law  and  Laws  of  War,  quoted  by  Hon. 
A.  F.  Perry. 
2Farrar,  p.  420. 


150  THE  CONSTITUTION.  1.  IX.  4. 

So  a  law  would  be  ex  pod  facto  that  inflicts  a  greater 
punishment  than  the  law  imposed  when  the  crime 
was  committed.  The  pi \ rase  applies  only  to  penal 
and  criminal  laws,  and  not  to  civil  proceedings  which 
affect  private  interests  retrospectively.  A  law  abolish 
ing  imprisonment  for  debt  would  not  be  an  ex  post  facto 
law,  though  it  should  apply  to  past  contracts;  nor 
would  a  law  rectifying  some  error,  as  making  deeds 
of  land  valid,  which  were  void  through  some  defect. 

In  the  case  ex  parte  Garland,  the  majority  of  the 
Supreme  Court  held  that  the  law  of  January  24th, 
1865,  which  required  a  prescribed  oath  of  every  attor 
ney  before  he  could  practice  at  the  bar  of  a  United 
States  Court,  was  in  violation  of  this  clause,  and 
therefore  unconstitutional.  Judges  Chase,  Davis,  Miller, 
and  Swayne  dissented;  in  their  judgment  the  act  of 
Congress  referred  to  was  neither  a  bill  of  attainder 
nor  an  ex  post  facto  law. 

Clause  4. — No  capitation  or  other  direct  tax  shall  be 
laid,  unless  in  proportion  to  the  census  or  enumeration 
hereinbefore  directed  to  be  taken. 

A  capitation  tax  is  a  poll  tax.  The  tax  is  levied 
not  according  to  property,  but  by  the  head.  By  Ar 
ticle  I,  Section  2,  the  Constitution  provided  that  direct 
taxes  should  be  divided  among  the  States  according 
to  the  population;  and  in  estimating  the  population, 
only  three-fifths  of  the  slaves  should  be  counted.  This 
clause  would  therefore  exempt  two-fifths  of  the  slaves 
from  every  poll  tax  levied  by  the  general  government. 
It  was  to  secure  this  exemption,  and  to  prevent  the 
levying  of  any  special  tax  on  slaves,  that  the  clause 
was  inserted.  No  capitation  tax  has  ever  been  levied 
by  the  United  States.  In  some  of  the  States  it  is 
forbidden  by  their  Constitutions.  The  direct  tax  of 
1798  was  assessed  upon  dwelling-houses,  lands,  and 
slaves — upon  each  slave  fifty  cents.  This  was  not  a 


1.  IX.  5.  EXPORT  DITTIES  PROHIBITED.  151 

capitation  tax,  though  in  the  States  where  slaves  were 
held,  a  part  of  the  tax  was  levied  upon  the  capitation 
principle,  so  far  as  the  slaves  were  concerned. 

Clause  5. — No  tax  or  duty  shall  be  laid  on  articles 
exported  from  any  State.  No  preference  shall  be  given 
by  any  regulation  of  commerce  or  revenue  to  the  ports 
of  one  State  over  those  of  another ;  nor  shall  vessels  bound 
to  or  from  one  State  be  obliged  to  enter,  clear,  or  pay 
duties  in  another. 

That  part  of  this  clause  which  relates  to  the  taxing 
of  exports  was  reported  by  the  Committee  of  Detail  in 
connection  with  the  clause  relating  to  the  importation 
of  slaves.  There  was  strong  opposition  in  the  Conven 
tion  to  giving  up  the  right  to  tax  exports.  Several 
of  the  most  influential  members,  Washington,  Madi 
son,  Wilson,  Morris,  and  others,  were  in  favor  of  allow 
ing  Congress  to  tax  exports  as  well  as  imports,  regard 
ing  the  power  as  essential  to  a  general  government. 

This  prohibition  has  been  generally  understood  as 
including  all  exports,  though  there  has  been  no  ju 
dicial  decision  upon  the  subject.  The  opinion  is  held 
by  some  that  the  intention  was  to  prevent  any  dis 
crimination  against  a  particular  State,  and  that  Con 
gress  is  not  prohibited  from  levying  an  export  duty 
on  articles  exported  from  a  number  of  States.1 

The  Constitution  of  the  Confederate  States  contained 
no  such  clause  of  prohibition,  and  heavy  export  duties 
were  levied  upon  cotton. 

To  "enter"  a  port  is  to  report  the  shi\>  with  the  car 
go  to  the  proper  officer,  and  obtain  permission  to  land 
the  cargo.  To  "clear"  is  to  obtain  from  the  proper 
authorities  the  necessary  papers  for  sailing  from  the 
port.  While  we  .were  colonies  under  Great  Britain,  no 


1  North  American  Review,  July,  1865. 


152  THE  CONSTITUTION.  1.  IX.  6, 

American  ship  could  trade  with  any  port  in  Europe 
unless  it  first  entered  and  cleared  from  a  British  port. 
But  now  a  vessel  can  take  her  cargo  from  New  York,  or 
Boston,  or  New  Orleans,  directly  to  any  European  port. 
So  a  vessel  can  go  from  any  one  American  port  to  any 
other.  This  latter  constitutes  the  coasting  trade,  which 
is  vastly  greater  in  amount  than  the  foreign  trade. 

A  former  clause  (Sec.  8,  Clause  1)  requires  all  duties, 
imposts,  and  excises  to  be  uniform  throughout  the 
United  States.  This  clause,  providing  that  no  prefer 
ence  should  be  given  to  one  State  over  another  in  any 
commercial  regulation,  is  of  the  same  character.  The 
different  States  were  to  be  treated  with  absolute  im 
partiality  and  equal  justice  by  the  general  government. 

Clause  6. —  iVo  money  shall  be  drawn  from  the  treasury, 
but  in  consequence  of  appropriations  made  by  law ;  and 
a  regular  statement  and  account  of  the  receipts  and  expen 
ditures  of  all  public  money  shall  be  published  from  time 
to  time. 

The  propriety  of  this  clause  is  obvious.  It  is  a  lim 
itation  on  the  Executive  Department,  and  not  on  the 
Legislative.  The  appropriations  are  voted  annually, 
the  fiscal  year  ending  on  the  thirtieth  of  June.  These 
appropriations  are  made  for  the  different  departments 
of  the  government  with  much  detail,  and  the  duties 
devolving  on  the  Committee  on  Appropriations  are  very 
arduous  and  responsible.  The  acts  making  appropria 
tions  for  the  year  ending  June  30th,  1872,  fill  ninety- 
eight  pages  of  the  United  States  Statutes  at  Large.  To 
show  the  minuteness  of  these  appropriations,  there  are 
fifteen  different  specifications  under  the  head  of  "Li 
brary  of  Congress." 

The  account  of  the  receipts  and  expenditures  is 
annually  reported  to  Congress  by  the  Secretary  of  the 
Treasury.  These  reports  form  an  important  part  of  the 
executive  documents  of  the  government. 


1.  IX.  7.  TITLES  OF  NOBILITY.  153 

Clause  7. — ATo  title  of  nobility  shall  be  granted  by  the 
United  States ;  and  no  person  holding  any  office  of  profit 
or  trust  under  them,  shall,  without  the  consent  of  the  Con 
gress,  accept  of  any  present,  emolument,  office,  or  title,  of 
any  kind  whatever,  from  any  king,  prince,  or  foreign  state. 

"  Nothing  need  be  said  to  illustrate  the  importance 
of  the  prohibition  of  titles  of  nobility.  This  may  truly 
be  denominated  the  corner-stone  of  republican  govern 
ment;  for  so  long  as  they  are  excluded  there  can  never 
be  serious  danger  that  the  government  will  be  any 
other  than  that  of  the  people."1 

The  second  clause  is  to  prevent  any  officer  of  the 
government  from  being  influenced  by  a  gift  of  any 
kind  from  any  foreign  prince  or  state.  History  shows 
abundant  instances  of  the  bribing  by  one  government 
of  the  officials  of  another.  When  presents  have  been 
sent  to  officers  of  our  government  by  a  foreign  power, 
they  have  become  the  property  of  the  government,  or 
Congress  has  authorized  those  to  whom  they  were  sent 
to  receive  them. 

At  the  second  session  of  the  Eleventh  Congress,  an 
amendment  to  the  Constitution  was  proposed,  two-thirds 
of  both  houses  concurring,  extending  this  prohibition  to 
private  citizens.  "  If  any  citizen  of  the  United  States 
shall  accept,  claim,  receive  or  retain  any  title  of  nobility 
or  honor,  or  shall,  without  the  consent  of  Congress,  ac 
cept  and  retain  any  present,  pension,  office,  or  emolu 
ment  of  any  kind  whatever,  from  any  emperor,  king, 
prince,  or  foreign  power,  such  person  shall  cease  to  be 
a  citizen  of  the  United  States,  and  shall  be  incapable 
of  holding  any  office  of  trust  or  profit  under  them,  or 
either  of  them." 2  But  this  proposed  amendment  has 
never  been  ratified  by  the  requisite  number  of  States. 


1  Hamilton,  Federalist,  No.  84. 

2U.  S.  Statutes  at  Large,  II,  p.  613. 


154  THE  CONSTITUTION.  1.  X.  1. 

Sec.  10,  Clause  1. — No  State  shall  enter  into  any  treaty, 
alliance,  or  confederation;  grant  letters  of  marque  and 
reprisal;  coin  money;  emit  bills  of  credit;  make  any 
thing  but  gold  and  silver  coin  a  tender  in  payment  of 
debts;  pass  any  bill  of  attainder,  ex  post  facto  law,  or 
law  impairing  the  obligation  of  contracts,  or  grant  any 
title  of  nobility. 

This  section  contains  prohibitions  and  restrictions 
on  the  power  of  the  States.  The  Constitution  is  the 
expression  of  the  will  of  the  nation ;  that  is,  of  the 
people  of  the  whole  country.  To  the  nation  belongs 
the  sovereign  power.  In  the  Constitution  the  nation 
has  declared  that  the  general  government  shall  exer 
cise  all  the  powers  of  national  sovereignty,  and  that 
the  States  shall  have  authority  in  matters  of  local  and 
municipal  government.  Powers  pertaining  to  national 
sovereignty  are  expressly  denied  to  the  States  in  this 
tenth  section.  Nearly  all  these  prohibitions  are  found 
also  in  the  Articles  of  Confederation,  and  some  of  them 
are  expressed  there  in  terms  stronger  than  in  the 
Constitution. 

We  find,  indeed,  in  those  Articles  the  clause,  "Each 
State  retains  its  sovereignty,  etc./'  but  the  words  are 
without  meaning,  as  the  Articles  themselves  make 
the  general  government  sovereign,  and  not  the  States. 
Though  we  often  hear  the  States  spoken  of  as  sover 
eign,  they  have  never  been  so  in  fact.  They  were  Col 
onies  till  the  fourth  of  July,  1776,  and  then  the 
United  Colonies  became  a  nation,  and  each  Colony  be 
came  a  State.  From  that  -day  to  this  the  individual 
States  have  exercised  none  of  the  powers  of  sovereignty. 
It  is  not  unfrequently  said  that  the  States  parted  with 
their  sovereignty  when  the  Constitution  was  formed; 
implying  that  till  then  they  possessed  sovereign  powers. 
But  they  could  not  part  with  what  they  never  pos 
sessed.  The  question  is  one  of  fact,  and  not  one  of 


1.  X.  1.  PROHIBITIONS  ON  THE  STATES.  155 

theory.  The  Continental  Congress  exercised  the  powers 
of  national  sovereignty  from  the  day  of  the  Declara 
tion  of  Independence  till  the  present  Constitution  went 
into  operation.  In  the  language  of  Mr.  Jay,  afterward 
Chief  Justice  of  the  Supreme  Court,  "To  all  general 
purposes,  we  have  uniformly  been  one  people;  each 
individual  citizen  every-where  enjoying  the  same  na 
tional  rights,  privileges,  and  protection.  As  a  nation, 
we  have  made  peace  and  war;  as  a  nation,  we  have 
vanquished  our  common  enemies ;  as  a  nation,  we  have 
formed  alliances,  and  made  treaties,  and  entered  into 
various  compacts  and  conventions  with  foreign  states. M1 

The  Articles  of  Confederation  prohibited  the  States 
from  "sending  any  embassy  to,  or  receiving  any  em 
bassy  from,  or  entering  into  any  conference,  agreement, 
alliance,  or  treaty,  with  any  king,  prince,  or  state," 
without  the  consent  of  the  United  States.  In  the  Con 
stitution  the  prohibition  is  absolute.  Were  each  State 
to  have  the  power  to  form  alliances  with  foreign  na 
tions,  it  would  be  impossible  to  preserve  the  peace  and 
harmony  of  the  several  parts  of  the  Republic.  The 
Union  would  soon  be  dissolved,  and  the  nation  split 
into  fragments.  Could  the  States  grant  letters  of  marque, 
it  would  be  in  the  power  of  any  one  to  involve  the 
rest  in  war.  All  these  powers,  being  incident  to  na 
tional  sovereignty,  are  thus  wisely  and  necessarily 
prohibited  to  the  States. 

The  Articles  of  Confederation  allowed  the  States  to 
coin  money,  but  gave  to  Congress  the  exclusive  right 
to  regulate  the  alloy  and  value  of  the  coin.  The  power 
of  the  States  in  regard  to  money  was  thus  a  qualified 
power.  But  the  provision  of  the  Constitution,  prohib 
iting  the  States  absolutely  from  coining  money,  is  a 
manifest  improvement  on  the  previous  system. 

The  States   are  also   prohibited   from   emitting  bills 


federalist,  No.  2. 


156  THE  CONSTITUTION.  I.X.I, 

of  credit.  "  To  constitute  a  bill  of  credit,  within  the 
Constitution,  it  must  be  issued  by  a  State,  involve  the 
faith  of  the  State,  and  be  designed  to  circulate  as 
money,  on  the  credit  of  the  State,  in  the  ordinary  uses 
of  business."  *  Such  bills*  may  or  may  not  bear  in 
terest  ;  they  may  or  may  not  be  made  a  legal  tender. 
Neither  of  these  circumstances  would  affect  them  as 
bills  of  credit.  The  State  of  Missouri  issued  loan  cer 
tificates,  bearing  interest  and  redeemable  by  the  State, 
which  were  made  receivable  for  taxes  and  debts,  and 
by  public  officers  in  payment  of  their  salaries.  But 
the  Supreme  Court  decided  that  they  were  bills  of 
credit,  and  therefore  unconstitutional.  A  State  may 
borrow  money  and  issue  bonds  therefor ;  such  bonds  are 
not  bills  of  credit.  The  paper  currency  issued  by  the 
Continental  Congress,  and  by  the  several  States  prior 
to  the  adoption  of  the  Constitution,  was  known  as  bills 
of  credit. 

The  evils  of  the  paper  money  issued  by  the  States 
after  the  war  of  the  Revolution  are  strikingly  depicted 
by  Mr.  Madison.  "The  loss  which  America  has  sus 
tained  since  the  peace,  from  the  pestilent  effects  of 
paper  money  on  the  necessary  confidence  between  man 
and  man ;  on  the  necessary  confidence  in  the  public 
councils;  on  the  industry  and  morals  of  the  people, 
and  on  the  character  of  republican  government,  con 
stitutes  an  enormous  debt  against  the  States  charge 
able  with  this  unadvised  measure,  which  must  long 
remain  unsatisfied;  or  rather  an  accumulation  of  guilt, 
which  can  be  expiated  no  otherwise  than  by  a  volun 
tary  sacrifice  on  the  altar  of  justice,  of  the  power 
which  has  been  the  instrument  of  it."1 

The  States  are  also  forbidden  to  make  any  thing  but 
gold  and  silver  coin  a  legal  tender  in  payment  of 
debts.  The  Constitution  virtually  places  the  control 


Federalist,  No.  44. 


1.  X.  1.  PROHIBITIONS  ON  THE  STATES.  157 

of  the  whole  subject  of  money  and  the  currency  with 
the  general  government.  The  States  have,  indeed, 
established  banks  and  authorized  them  to  issue  notes 
for  circulation,  but  it  lias  been  by  sufferance,  and  not 
by  Constitutional  authority.  The  general  government, 
in  the  establishment  of  national  banks,  have  assumed 
the  exercise  of  the  power  which  it  was  manifestly  the 
intention  of  the  Constitution  they  should  possess. 

While  the  power  to  coin  money  is  among  the  powers 
of  Congress  mentioned  in  Section  8,  nothing  is  said  as 
to  the  power  of  Congress  to  emit  bills  of  credit,  or  to 
make  any  thing  but  gold  and  silver  a  legal  tender. 
These  powers,  have,  however,  been  considered  as  be 
longing  to  Congress,  and  both  have  been  exercised. 
The  United  States  notes  now  in  circulation  as  money, 
known  as  "greenbacks"  or  "legal  tenders,"  are  bills 
of  credit,  and  they  would  be  such  even  if  they  were 
not  required  by  law  to  be  received  in  payment  of 
debts. 

The  States  as  well  as  the  general  government  are 
prohibited  from  passing  any  bills  of  attainder  or  ex  pott 
facto  laws.  There  would  be  no  propriety  in  allowing  it 
to  the  former,  if  prohibited  to  the  latter.  Very  wisely 
such  laws  are  entirely  prohibited. 

No  State  can  pass  laws  impairing  the  obligation  of 
contracts.  The  obligation  here  spoken  of  is  legal,  not 
moral.  "The  spirit  of  the  provision  is  this:  A  con 
tract  which  is  legally  binding  upon  the  parties  at  the 
time  and  place  it  is  entered  into  by  them,  shall  remain 
so,  any  law  of  the  States  to  the  contrary  notwithstand 
ing."1 

Under  this  clause  the  States  are  clearly  prohibited 
from  passing  bankrupt  laws,  which  should  impair  the 
obligation  of  contracts  made  antecedently  to  their  pas 
sage.  The  Supreme  Court  has  decided,  however,  that 


1  Tiffany,  p.  217. 


158  THE   CONSTITUTION.  1.  X.  1. 

the  States  may  pass  laws  operating  upon  future  con 
tracts  between  their  own  citizens. 

But  this  prohibition  does  not  apply  to  the  general 
government.  The  States  can  not  pass  laws  impairing 
the  obligation  of  contracts,  but  Congress  may  establish 
uniform  laws  on  the  subject  of  bankruptcies  through 
out  the  United  States.  "  The  general  government  has 
jurisdiction  over  all  persons  and  property  within  the 
United  States,  to  execute  the  plenary  power  and  au 
thority  of  the  nation  in  respect  to  all  subjects  commit 
ted  to  its  jurisdiction.  It  can  determine  upon  what 
conditions  and  in  what  degree  individuals  may  be  re 
leased  from  the  complete  fulfillment  of  their  contracts. 
That  is,  as  the  supreme  authority  upon  that  subject, 
Congress  can  by  law  determine  the  limit  of  legal  obli 
gation  arising  out  of  every  species  of  indebtedness,  and 
can  prescribe  the  manner  by  which  a  party  should 
proceed  to  obtain  legal  absolution  of  his  debts."  l 

The  term,  contract,  is  made  to  include  grants,  whicli 
are  contracts  that  have  been  executed.  A  grant  made 
by  a  State  legislature  is  irrevocable.  Whenever  a  law 
is  in  its  own  nature  a  contract,  and  absolute  rights 
have  vested  under  it,  a  repeal  of  that  law  can  not  di 
vest  those  rights,  or  annihilate  or  impair  the  title  so 
acquired.2 

If  a  charter  of  a  bank,  which  has  been  incorporated 
by  a  State,  should  prescribe  the  manner  in  which  the 
bank  should  be  taxed,  the  State  could  not  subsequently 
alter  the  mode  of  taxation,  not  even  if  meanwhile  the 
State  should  have  adopted  a  new  Constitution  prescrib 
ing  the  manner  in  which  banks  should  be  taxed. 

So  a  charter  of  a  college  is  a  contract  which  the 
legislature  of  a  State  can  not  annul  or  impair.  The 
State  of  New  Hampshire  attempted  to  change  the 
charter  of  Dartmouth  College,  transferring  the  govern- 


Tiffany,  p.  217.         2  Story. 


1.  X.  2.  PROHIBITIONS  ON  THP]  STATES.  159 

ment  of  the  institution  from  the  old  charter  trustees  to 
new  trustees  appointed  under  the  legislative  act.  But 
the  action  of  the  legislature  was  declared  by  the  Su 
preme  Court  to  be  unconstitutional. 

Clause  2. — No  State  shall,  without  the  consent  of  the 
Congress,  lay  any  imposts  or  duties  on  imports  or  ex 
ports,  except  what  may  be  absolutely  necessary  for  execut 
ing  its  inspection  laws:  and  the  net  produce  of  all  du 
ties  and  imposts,  laid  by  any  State  on  imports  or  exports, 
shall  be  for  the  use  of  the  treasury  of  the  United  States; 
and  all  such  laws  shall  be  subject  to  the  revision  and 
control  of  the  Congress.  No  State  shall,  unthout  the 
consent  of  Congress,  lay  any  duty  of  tonnage,  keep 
troops  or  ships  of  war  in  time  of  peace,  enter  into  any 
agreement  or  compact  with  another  State  or  with  a  for 
eign  power,  or  engage  in  war,  unless  actually  invaded, 
or'  in  such  imminent  danger  as  will  not  admit  of  delay. 

The  authority  to  levy  duties  on  goods  imported  prop 
erly  belongs  to  the  general  government.  The  exercise 
of  this  power  by  the  several  States,  prior  to  the  adop 
tion  of  the  Constitution,  was  one  of  the  chief  causes 
of  the  overthrow  of  the  Articles  of  Confederation.  The 
whole  power  is  now  vested  in  Congress,  and  the  States 
are  by  this  clause  prohibited  from  laying  any  duties 
except  with  the  consent  of  Congress,  and  the  revenue 
obtained  in  such  case  must  be  paid  into  the  treasury 
of  the  United  States. 

The  object  of  inspection  is  to  secure  a  certain  stand 
ard  of  excellence  in  commodities  offered  for  sale,  so 
that  purchasers  may  not  be  imposed  upon.  An  in 
spector  is  appointed  under  State  law,  whose  duty  it  is 
to  examine  flour,  pork,  etc.,  and  certify  as  to  its 
quality.  If  it  comes  up  to  the  required  standard  he 
stamps  or  brands  the  cask  or  package  accordingly. 
Sometimes  the  inspector  is  paid  by  the  city  which  ap- 


THE  CONSTITUTION.  1.  X.  2. 

points  him,  and  sometimes  his  compensation  is  ob 
tained  by  means  of  fees.  Thus  in  Ohio  the  inspector 
of  refined  oil  receives  from  six  to  ten  cents  a  barrel  for 
inspecting  it.  To  prevent  the  State  from  receiving 
any  revenue  from  this  source,  the  Constitution  re 
quires  that  all  fees  beyond  the  cost  of  inspection  shall 
be  paid  into  the  national  treasury. 

A  State  can  not  lay  duties  on  imports  or  exports 
indirectly.  Maryland  once  required  all  importers  of 
foreign  goods,  and  those  selling  the  same  in  the  origi 
nal  package,  to  take  a  license  from  the  State,  for 
which  a  fee  of  fifty  dollars  was  to  be  paid.  The  Su 
preme  Court  decided  that  the  law  requiring  this  was 
unconstitutional,  because  it  virtually  levied  a  duty  on 
the  articles  imported. 

The  Constitution  in  no  other  clause  refers  to  tax 
ation  of  any  kind  by  State  authority.  But  it  every 
where  recognizes  the  existence  of  the  States  as  gov 
ernments,  and  thus  presupposes  their  power  to  levy 
taxes.  For  the  support  of  its  local  government  a  State 
may  tax  its  citizens,  but  it  may  not  levy  duties  on 
imports,  save  with  the  consent  of  Congress,  and  for 
inspection  purposes.  And  the  Supreme  Court  has  de 
cided  that  a  State  can  not  levy  a  tax  that  shall  in 
any  way  obstruct  the  legislation  of  the  general  gov 
ernment.  Thus  a  State  can  not  tax  United  States 
bonds  or  Treasury  notes,  or  a  bank  chartered  by  the 
general  government,  except  as  provision  is  made  for 
such  State  taxation  by  Congress;  while  the  United 
States  may  levy  a  tax  upon  State  bonds,  or  banks 
chartered  by  the  States.  When  Congress  tax  the 
chartered  institutions  of  the  States  they  tax  their 
own  constituents;  and  such  taxes  must  be  uniform. 
But  when  a  State  taxes  an  institution  created  by  Con 
gress  it  taxes  an  instrument  of  a  superior  and  in 
dependent  sovereignty,  not  represented  in  the  State 
legislature.  (Story.) 


2.  I.  i.  THE   EXECUTIVE   DEPARTMENT.  161 

Duties  on  tonnage  are  duties  on  ships.  A  ship  that 
can  carry  five  hundred  tons  of  freight  is  said  to  be  of 
five  hundred  tons  burden.  Where  duties  are  levied 
upon  ships,  it  is  in  proportion  to  their  capacity,  or 
the  amount  of  freight  they  can  carry.  If  the  States 
are  prohibited  from  raising  a  revenue  from  goods  im 
ported,  they  should  also  be  prohibited  from  taxing  the 
ships  in  which  the  goods  are  brought. 

The  other  prohibitions  in  this  clause  refer  to  matters 
of  national  sovereignty.  The  whole  control  of  questions 
relating  to  peace  and  war,  treaties,  alliances,  etc.,  is 
placed  in  the  general  government;  and  nothing  can 
be  done  by  the  States  in  these  matters  except  under 
its  direction.  It  has  been  seen  that  there  are  implied 
as  well  as  express  prohibitions  on  the  powers  of  the 
States.  Thus  "no  State  can  control,  or  abridge,  or  in 
terfere  with  the  exercise  of  any  authority  under  the 
national  government.  And  it  may  be  added  that  State 
laws,  as,  for  instance,  State  statutes  of  limitations,  and 
State  insolvent  laws,  have  no  operation  upon  the  rights 
or  the  contracts  of  the  United  States.'1  (Story.) 


ARTICLE    II. 
THE   EXECUTIVE    DEPARTMENT. 


Sec.  1,  Clause  1. —  The  Executive  poirer  shall  be  rested 
in  a  President  of  the  United  States  of  America.  He  shall 
hold  his  office  during  the  term  of  four  years,  and,  together 
with  the  Vice- President,  chosen  for  the  same  term,  be  elected 
as  follows : 

From  the  Declaration  of  Independence  to  the  time 
when  the  Constitution  went  into  operation,  there  had 
been  no  Executive  Department.  In  the  Convention 
there  was  no  difference  of  opinion  as  to  the  propriety 
and  necessity  of  establishing  such  a  department  dis 
tinct  from  the  Legislative.  There  was  not  the  same 
C.  G.  14. 


162  THE  CONSTITUTION.  2.  I.  1. 

unanimity  as  to  the  other  questions,  viz.,  whether  the 
power  should  be  vested  in  a  single  person,  what  should 
be  the  term  of  office,  how  the  Executive  should  be 
chosen,  and  whether  the  office  should  be  held  a  second 
time  by  the  same  person  or  persons.  The  vote  in  the 
Committee  of  the  Whole  was  "That  a  national  Execu 
tive  be  instituted,  to  consist  of  a  single  person,  to  be 
chosen  by  the  national  legislature  (Congress)  for  the 
term  of  seven  years."  Subsequently  the  Committee  of 
Detail  reported  the  same  clause,  with  the  addition  that 
he  should  not  be  elected  a  second  time.  Repeated  efforts 
were  made  in  the  Convention  by  the  delegates  from 
Pennsylvania,  to  change  the  mode  of  election,  so  that 
the  Executive  might  be  elected  by  the  people,  or  by 
electors,  instead  of  by  Congress;  but  only  two  States 
voted  for  the  change.  It  was  then  referred  to  the 
Committee  of  one  from  each  State,  appointed  to  report 
on  the  unfinished  parts  of  the  Constitution,  who  re 
ported  it  nearly  as  it  was  finally  adopted. 

There  is  no  difference  of  opinion  at  the  present  time 
in  regard  to  the  importance  of  unity  in  the  Executive. 
All  are  agreed  that  this  power  must  be  lodged  in  the 
hands  of  one  man.  To  divide  responsibility  is  to  in 
troduce  feebleness.  Every  government  should  be  ad 
ministered  with  firmness  and  vigor.  When  laws  are 
enacted  they  must  be  executed.  The  maxim  that  that 
government  is  best  which  governs  least,  is  not  true. 
That  government  is  best  which  is  so  promptly  and 
wisely  administered  that  there  will  be  little  disposition 
to  violate  or  evade  the  law.  Republics  are  often  af 
firmed  to  be  feeble  of  necessity;  but  there  is  no  incon 
sistency  between  a  republican  government  and  great 
firmness  and  energy  of  administration. 

The  Executive  power  "shall  be  vested,"  that  is,  is 
vested.  The  President  duly  elected  has  the  power  by 
the  Constitution,  without  any  law  conferring  it  on 
him.  The  power  is  vested  in  the  President  alone ;  not 


2.  I.  1.  THE  EXECUTIVE   DEPARTMENT.  163 

in  him  and  his  Cabinet.  In  some  of  the  States  the 
Executive  power  is  exclusively  in  the  Governor;  in 
others  the  joint  action  of  the  Governor  and  Council 
is  required.  The  Executive  power  is  not  defined  in 
the  Constitution.  Whatever  it  is,  it  is  vested  in  the 
President.  The  Constitution  authorizes  him  to  do  some 
things  which  do  not  necessarily  belong  to  him  as  Presi 
dent.  Thus  he  has  a  qualified  negative  on  the  legis 
lation  of  Congress;  with  the  advice  and  consent  of  the 
Senate  he  can  make  treaties;  he  is  Commander-in-Chief 
of  the  Army  and  Navy.  But  whatever  else  may  belong 
to  the  Executive  Department,  this  does,  that  the  Presi 
dent  should  see  that  the  laws  are  executed. 

We  have  seen  that  the  Convention  that  framed  the 
Constitution  decided  in  Committee  of  the  Whole  that 
the  term  of  office  of  the  President  should  be  seven 
years,  and  that  he  could  not  hold  the  office  a  second 
term.  Both  these  provisions  were  subsequently  changed; 
the  term  of  office  being  four  years,  and  the  restriction 
to  a  single  term  having  been  stricken  out,  so  that  the 
people  may  elect  the  same  man  to  the  Presidency  as 
many  times  as  they  please. 

From  the  adoption  of  the  Constitution  to  1840,  each 
successive  President  was  a  candidate  for  re-election, 
and  five  were  elected  a  second  time,  viz.,  Washington, 
Jefferson,  Madison,  Monroe,  and  Jackson.  John  Adams, 
John  Quincy  Adams,  and  Martin  Van  Buren  were  nomi 
nated  for  a  second  term,  but  not  elected.  Since  1840  no 
President  has  been  nominated  for  re-election  except  Mr. 
Lincoln  in  1864,  and  General  Grant  in  1872,  who  were 
both  elected.  Thus  seven  Presidents  have  been  elected 
a  second  time,  three  have  been  candidates  for  a  second 
term,  but  have  failed  of  an  election,  and  six  have  not 
been  re-nominated.  No  President  has  been  a  candidate 
for  a  third  term. 

The  question  of  one  presidential  term  has  been  much 
agitated.  It  is  doubtful  whether  the  Convention  acted 


164  THE   CONSTITUTION.  2.  I.  2. 

wisely  in  reducing  the  length  of  the  term  from  seven 
years  to  four,  and  in  striking  out  the  clause  forbidding 
a  re-election.  "The  election  of  a  supreme  executive 
magistrate  for  a  whole  nation,  affects  so  many  interests, 
addresses  itself  so  strongly  to  popular  passions,  and 
holds  out  such  powerful  temptations  to  ambition  that 
it  necessarily  becomes  a  strong  trial  to  public  virtue, 
and  even  hazardous  to  the  public  tranquillity.  *  * 
This  is  the  question  that  is  eventually  to  test  the 
goodness,  and  try  the  strength  of  the  Constitution."1 

Besides  the  excitement  attending  the  election  of  the 
executive  head  of  a  great  nation,  which  is  so  great 
that  Mr.  Paley  condemns  all  elective  monarchies,  and 
thinks  nothing  is  gained  by  a  popular  election  worth 
the  dissensions,  tumults,  and  interruptions  of  regular 
industry,  with  which  it  is  inseparably  attended,  there 
is  the  unfavorable  influence  on  the  President  himself. 
It  is  natural  that  he  should  desire  the  approbation  of 
the  people  as  manifested  by  a  re-election.  But  the 
danger  is  that  this  desire  may  tempt  him  to  shape 
his  administration  so  as  to  secure  a  rcnomination. 

Clause  2.—  Each  State  shall  appoint,  in  such  manner 
as  the  legislature  thereof  may  direct,  a  number  of  Electors 
equal  to  the  whole  number  of  Senators  and  Representatives 
to  which  the  State  may  be  entitled  in  the  Congress;  but  no 
Senator  or  Representative,  or  person  holding  an  office  of 
trust  or  profit  under,  the  United  States,  shall  be  appointed 
an  Elector. 

The  President  and  Vice-Preside nt  are  to  be  chosen 
by  Electors,  but  the  manner  in  which  the  Electors  are 
to  be  appointed  is  left  to  the  legislature  of  each  State. 
"The  Electors  were  at  first  chosen  in  four  different 
modes,  viz.,  by  joint  ballot  of  the  State  legislatures,  by 


1  Kent,   I,  p.  273. 


2,  I.  2.  THE  ELECTION  OF  PKESIDENT.  165 

a  concurrent  vote  of  the  two  branches  of  the  legis 
lature,  by  the  people  of  the  State  voting  by  general 
ticket,  and  by  the  people  voting  in  districts.  This 
latter  mode  was  evidently  that  which  gave  the  fairest 
expression  to  public  opinion  by  approaching  nearest 
to  a  direct  vote.  But  those  States  which  adopted  it 
were  placed  at  the  disadvantage  of  being  exposed  to  a 
division  of  their  strength  and  neutralization  of  their 
vote;  while  the  Electors  chosen  by  either  of  the  other 
methods  voted  in  a  body  on  one  side  or  the  other,  thus 
making  the  voice  of  the  State  decisively  felt.  This 
consideration  induced  the  leading  States  of  Massachu 
setts  and  Virginia,  which  originally  adopted  the  dis 
trict  system,  to  abandon  it  in  1800." l 

The  election  in  1844  was  the  first  in  which  the 
electoral  vote  in  no  State  was  divided.  In  1860,  New 
Jersey  divided  her  vote;  and  in  1872  the  Democratic  votes 
were  scattered,  as  Mr.  Greeley,  the  candidate,  had  died. 
With  these  exceptions,  all  the  Electors  in  any  given 
State  have  since  1844  voted  for  the  same  candidates, 
and  the  President  and  Vice-President  have  received 
the  same  number  of  votes. 

The  Constitution  determines  the  number  of  Electors. 
Whatever  may  have  been  the  mode  of  choosing  them, 
whether  by  the  people  or  the  legislature,  it  has  been 
the  practice  to  take  one  from  each  Congressional  dis 
trict,  and  two  from  the  State  at  large.  No  qualifica 
tion  is  required  for  an  Elector  except  the  negative 
one,  that  he  shall  not  hold  an  office  of  profit  or  trust 
under  the  United  States. 

The  third  clause  has  been  abrogated  by  an  Amend 
ment  which  was  proposed  by  Congress  in  December, 
1803,  and  having  been  ratified  by  the  requisite  num 
ber  of  States,  became  valid  as  a  part  of  the  Constitu 
tion  in  September,  1804.  This  clause  will  be  found  in 


1  Lanman's  Dictionary  of  Congress,  p.  427. 


166  THE  CONSTITUTION.  2.  I.  3. 

the  note.1    The  Amendment  substituted  for  it  is  Article 
XII  of  the  Amendments,  and  is  as  follows : 

The  Electors  shall  meet  in  their  respective  States,  and 
vote  by  ballot  for  President  and  Vice- President,  one  of 
whom,  at  least,  shall  not  be  an  inhabitant  of  the  same  State 
with  themselves;  they  shall  name  in  their  ballots  the  person 
voted  for  as  President,  and  in  distinct  ballots  the  person 
voted  for  as  Vice- President,  and  they  shall  make  distinct 
lists  of  all  persons  voted  for  as  President,  and  of  all  per 
sons  voted  for  as  Vice- President,  and  of  the  number  of 
votes  for  each,  which  liste  they  shall  sign  and  certify,  and 
transmit  sealed  to  the  seat  of  the  government  of  the  United 
States,  directed  to  the  President  of  the  Senate.  The  Presi 
dent  of  the  Senate  shall,  in  the  presence  of  the  Senate  and 


1  Clause  3.  —  The  Electors  shall  meet  in  their  respective  States, 
and  vote  by  ballot  for  two  persons,  of  whom  one  at  least  shall  not 
be  an  inhabitant  of  the  same  State  with  themselves.  And  they  shall 
make  a  list  of  all  the  persons  voted  for,  and  of  the  number  of  votes 
for  each,  which  list  they  shall  -sign  and  certify,  and  transmit  sealed 
to  the  seat  of  the  government  of  the  United  States,  directed  to  the 
President  of  the  Senate.  The  President  of  the  Senate  shall,  in  the 
presence  of  the  Senate  and  House  of  Representatives,  open  all  the 
certificates,  and  the  votes  shall  then  be  counted.  The  person  having 
the  greatest  number  of  votes  shall  be  the  President,  if  such  number  be 
r.  majority  of  the  whole  number  of  Electors  appointed;  and  if  there  be 
more  than  one  who  have  such  a  majority,  and  have  an  equal  number 
of  votes,  then  the  House  of  Representatives  shall  immediately  choose 
by  ballot  one  of  them  for  President;  and  if  no  person  have  a  major 
ity,  then  from  the  five  highest  on  the  list,  the  said  House  shall  in  like 
manner  choose  the  President.  But  in  choosing  the  President,  the 
votes  shall  be  taken  by  States,  the  representation  from  each  State 
having  one  vote.  A  quorum  for  this  purpose  shall  consist  of  a 
member  or  members  from  two-thirds  of  the  States,  and  a  majority 
of  all  the  States  shall  be  necessary  to  a  choice.  In  eyery  case, 
after  the  choice  of  the  President,  the  person  having  the  greatest 
number  of  votes  of  the  Electors  shall  be  the  Vice-President.  But 
if  there  should  remain  two  or  more  who  have  equal  votes,  the 
Senate  shall  choose  from  them  by  ballot  the  Vice-President. 


Amend.  12.  THE   ELECTION   OF  PRESIDENT.  167 

House  of  Representatives,  open  all  the  certificates,  and  the 
votes  shall  then  be  counted;  the  person  having  the  greatest 
number  of  votes  for  President  shall  be  the  President,  if  such 
number  be  a  majority  of  the  whole  number  of  Electors  ap 
pointed  ;  and  if  no  person  have  such  majority,  then  from 
the  persons  having  the  highest  numbers,  not  exceeding  three, 
on  the  list  of  those  voted  for  as  President,  the  House 
of  Representatives  shall  choose  immediately,  by  ballot,  the 
President.  But  in  choosing  the  President,  the  votes  shall 
be  taken  by  States,  the  representation  from  each  State 
having  one  vote;  a  quorum  for  this  purpose  shall  consist 
of  a  member  or  members  from  two-thirds  of  the  States,  and 
a  majority  of  all  the  States  shall  be  necessary  to  a  choice. 
And  if  the  House  of  Representatives  shall  not  choose  a 
President,  whenever  the  right  of  choice  shall  devolve  upon 
them,  before  the  fourth  day  of  March  next  following,  then 
the  Vice- President  shall  act  as  President,  as  in  the  case  of 
the  death  or  other  constitutional  disability  of  the  President. 
The  person  having  the  greatest  number  of  votes  as  Vice- 
President  shall  be  the  Vice- President,  if  such  number  be 
a  majority  of  the  whole  number  of  Electors  appointed, 
and  if  no  person  have  a  majority,  then  from  the  two 
highest  numbers  on  the  list  the  Senate  shall  choose  the 
Vice- President ;  a  quorum  for  the  purpose  shall  consist 
of  two-thirds  of  the  whole  number  of  Senators,  and  a 
majority  of  the  whole  number  shall  be  necessary  to  a 
choice.  But  no  person  constitutionally  ineligible  to  the 
office  of  President  shall  be  eligible  to  that  of  Vice- Presi 
dent  of  tic  United  States. 

According  to  the  original  clause  the  Electors  were  to 
vote  for  two  persons  without  designating  either  as 
President  or  Vice-President.  The  one  who  had  the 
greatest  number  of  votes,  provided  that  number  was  a 
majority  of  all  the  votes  cast,  was  to  be  the  President, 
and  the  other  the  Vice-President.  If  two  had  the 


168  THE   CONSTITUTION.  2. 1.  3. 

same  number,  being  a  majority,  the  House  of  Represent 
atives  was  to  choose  one  of  them  for  President.  If  no 
one  had  a  majority,  the  House  of  Representatives  was 
to  choose  a  President  from  the  five  highest. 

The  chief  points  of  difference  between  the  methods  are 
these  two:  according  to  the  Amendment  each  Elector 
votes  for  President  as  such,  and  also  for  Vice-President ; 
and  if  the  election  goes  to  the  House  of  Representa 
tives,  the  choice  is  from  the  three  highest,  instead  of 
from  five,  as  was  provided  in  the  original  article. 

At  the  first  election  General  Washington  was  voted 
for  by  each  of  the  Electors,  69  in  number.  Mr.  John 
Adams,  who  became  Vice-President,  as  having  the 
next  highest  number  of  votes,  received  only  34;  the 
remaining  35  votes  having  been  divided  among  ten 
candidates. 

At  the  second  election,  in  1792,  General  Washington 
was  again  elected  unanimously,  receiving  132  votes.1 
Mr.  Adams  was  re-elected  Vice-President,  receiving  77 
votes,  a  majority  of  the  whole. 

At  the  third  election,  in  1796,  Mr.  Adams  was 
elected  President,  receiving  a  small  majority  of  the 
votes;  and  Mr.  Thomas  Jefferson  became  Vice-Presi 
dent,  though  he  had  not  a  majority. 

At  the  fourth  election,  in  1800,  Messrs.  Jefferson  and 
Burr,  who  belonged  to  the  same  political  party,  had 
the  same  number  of  votes,  being  a  majority  of  the 
whole ;  and  thus  the  choice  devolved  upon  the  House 
of  Representatives.  There  were  sixteen  States,  of 
which  eight  voted  for  Jefferson,  six  for  Burr,  and  two 
were  divided.  They  continued  to  vote  thus  for  thirty- 
five  ballotings,  occupying  seven  days,  nominally  with 
out  adjournment.  On  the  thirty-sixth  ballot,  the  two 
divided  States  voted  for  Jefferson,  and  so  he  became 
President,  and  Aaron  Burr  Vice-President.  It  was  this 


James  Monroe  in  1820,  received  all  the  Electoral  votes  but  one. 


2.  I.  3.  THE  ELECTION  OF   PRESIDENT.  169 

difficulty  that  led  to  the  amendment  of  the  Constitu 
tion,  which  Amendment  was  ratified  before  the  fifth 
election  in  1804. 

The  election  of  President  has  devolved  on  the  House 
of  Representatives  in  one  other  case.  In  the  fall  of 
1824,  Andrew  Jackson  received  99  Electoral  votes,  John 
Quincy  Adams  84,  William  H.  Crawford  41,  and  Henry 
Clay  37.  General  Jackson  lacked  32  of  a  majority,  and 
the  choice  devolved  on  the  House  of  Representatives. 
As  the  choice  must  be  from  the  three  highest,  Mr.  Clay 
could  not  be  voted  for.  Of  the  twenty-four  States,  thir 
teen  voted  for  Mr.  Adams,  seven  for  General  Jackson, 
and  four  for  Mr.  Crawford.  John  C.  Calhoun,  the  can 
didate  for  Vice-President  on  the  ticket  with  General 
Jackson,  was  elected,  having  received  182  votes.  In 
this  case  the  President  and  Vice-President  belonged  to 
different  political  parties. 

Once  only  has  the  choice  of  Vice-President  devolved 
on  the  Senate.  In  the  fall  of  1836,  Martin  Van  Buren 
received  170  votes  out  of  294  for  President,  and  was 
elected:  Richard  M.  Johnson  failed  of  an  election  to 
the  Vice-Presidency  by  one  vote,  having  received  147. 
He  was  chosen  by  the  Senate. 

Practically  the  people  vote  for  President  and  Vice- 
President,  and  it  is  known  who  is  to  be  the  next  Pres 
ident  long  before  the  Electoral  College  convenes.  Thus 
the  voting  by  the  Electors  has  become  a  mere  form, 
though  it  was  not  so  intended.  Various  plans  have 
been  suggested  in  respect  to  the  mode  of  electing  the 
President,  but  Congress  has  never  yet  proposed  an 
amendment  since  the  Constitution  was  altered  in  1804. 
By  the  present  mode  a  candidate  may  have  a  large 
majority  of  the  Electoral  votes,  and  yet  be  in  a  de 
cided  minority  so  far  as  the  popular  vote  is  concerned. 

By  the  original  article  a  Vice-President  could  not  be 
chosen  till  the  President  had  been  chosen;  a  failure  in 
the   choice   for   the    first    office    would   involve    there- 
C.  G,  15. 


170  THE  CONSTITUTION.  2.  I.  4. 

fore  a  failure  in  the  second  also.  The  Amendment 
avoids  this  difficulty,  by  providing  that  the  Senate 
may  choose  a  Vice-President  if  no  one  has  been  chosen 
by  the  Electoral  vote.  In  the  failure  by  the  House  of 
Representatives  to  choose  a  President  by  the  fourth  of 
March,  the  V ice-President  already  chosen  by  the  Sen 
ate  will  act  as  President. 

It  is  usual  for  the  two  Houses  to  meet  in  the  House 
of  Representatives,  when  the  votes  are  opened  by  the 
President  of  the  Senate,  and  handed  to  the  tellers  (one 
from  the  Senate  and  two  from  the  House),  who  count 
the  votes  and  announce  the  result.  In  February,  1865, 
Congress  passed  the  twenty-second  joint  rule,  by  which 
the  vote  of  no  State  should  be  counted  if  objected  to 
by  either  House.  This  feature  of  the  rule  was  not  en 
forced  in  1865  or  1869,  but  was  in  1873,  the  Senate  ob 
jecting  to  the  votes  from  Arkansas,  and  three  votes  for 
Mr.  Greeley  from  Georgia.  Before  1877  it  was  repealed 
by  the  Senate.  In  January,  1877,  an  act  was  passed, 
applicable  to  that  election  only,  that  no  vote  of  a  State 
should  be  rejected  except  by  concurrent  vote  of  both 
Houses,  and  that  all  cases  of  two  or  more  sets  of  votes 
from  the  same  State  should  be  referred  to  a  Commission 
of  fifteen,  composed  equally  of  Senators,  Representa 
tives,  and  Judges  of  the  Supreme  Court.  The  cases  re 
ferred  were  those  of  Florida,  Oregon,  South  Carolina, 
and  Louisiana,  and  were  all  decided  by  a  vote  of  eight 
to  seven,  and  Mr.  Hayes  was  elected  by  a  vote  of  185, 
Samuel  J.  Tilden  having  184. 

Clause  4:. — The  Congress  may  determine  the  time  of 
choosing  the  Electors,  and  the  day  on  which  the  if  shall 
give  their  votes;  ichich  day  shall  be  the  same  throughout 
the  United  States. 

After  the  Constitution  had  been  ratified  by  the  requi 
site  number  of  States,  the  Continental  Congress  ap 
pointed  the  first  Wednesday  in  January,  in  1789,  as 


2.  I.  5.  PRESIDENTIAL  ELECTORS.  17l 

the  day  for  choosing  Electors,  the  first  Wednesday  in 
February  for  the  Electors  to  assemble  and  vote  for 
President,  and  the  first  Wednesday  of  March  as  the 
day  on  which  to  commence  proceedings  under  the  new 
Constitution.1  The  first  Wednesday  of  March  was  the 
fourth  day  of  the  month,  in  the  year  1789. 

In  1792  an  act  was  passed  requiring  that  the  Electors 
be  appointed  within  thirty-four  days  preceding  the  first 
Wednesday  in  December;  that  the  Electors  should 
meet  and  give  their  votes  on  the  first  W>dnesday  in 
December;  that  the  votes  should  be  counted  on  the 
second  Wednesday  of  February;  and  that  the  Presi 
dential  term  of  four  years  should  commence  on  the 
fourth  day  of  March.  All  these  provisions  remain  in 
force,  except  that  as  to  the  time  of  choosing  Electors. 
By  act  of  Congress  of  January,  1845,  they  are  to  be 
chosen  on  the  Tuesday  next  after  the  first  Monday  in 
November.  Each  State  may  provide  for  filling  any 
vacancy  \vhich  may  occur  in  its  college  of  Electors. 
By  the  Amendment  to  the  Constitution,  made  in  1804, 
if  the  House  of  Representatives  should  not  elect  a 
President  by  the  fourth  of  March,  the  Vice-President 
becomes  President:  the  fourth  of  March  is  thus  vir 
tually  made  by  the  Constitution,  as  well  as  by  statute, 
the  day  when  a  new  Presidential  term  begins. 

The  Electors  in  each  State  make  and  sign  three  cer 
tificates  of  all  the  votes  given  by  them,  one  of  which 
is  to  be  forwarded  by  special  messenger  to  the  Presi 
dent  of  the  Senate  at  Washington,  one  is  to  be  sent  to 
him  by  mail,  and  one  is  to  be  delivered  to  the  judge 
of  that  district  in  which  the  Electors  meet. 

Clause  5.— No  person,  except  a  natural-born  citizen, 
or  a  citizen  of  the  United  State*  at  the  time  of  the  adop 
tion  of  this  Constitution,  shall  be  eligible  to  the  office  of 


'Journal  Cont.  Cong.,  XIII,  105. 


172  THE  CONSTITUTION.  2.  I.  6. 

President;  neither  shall  any  person  be  eligible  to  thai 
office  who  shall  not  hare  attained  to  the  <tge  of  thirty- 
jive  years,  and  been  fourteen  years  a  resident  within  the 
United  States. 

At  the  time  of  framing  the  Constitution,  a  number  of 
men  of  foreign  birth  were  among  the  most  prominent 
in  the  nation,  some  of  them  being  members  of  the 
Convention.  This  exception  in  favor  of  those  who 
were  citizens  at  the  time  the  Constitution  was  adopted 
was  a  mark  of  respect  to  them. 

A  residence  abroad  on  official  duty  would  not  inca 
pacitate  one  from  holding  the  office  of  President.  Mr. 
Buchanan  had  been  Minister  to  England  just  prior  to 
his  election  to  the  Presidency  in  1856. 

Clause  0. — In  case  of  the  removal  of  the  President  from 
office,  or  of  his  death,  resignation,  or  inability  to  discharge 
the  powers  and  duties  of  xaid  office,  the  same  shall  devolve 
on  the  Vice -President ;  and  the  Congress  may  by  law  pro 
vide  for  the  case  of  removal,  death,  resignation,  or  inability, 
both  of  the  President  and  Vice -President,  declaring  what 
officer  shall  then  act  as  President,  and  such  officer  shall  act 
accordingly,  until  the  disability  be  removed,  or  a  President 
shall  be  elected. 

Until  near  the  close  of  the  Convention  that  framed 
the  Constitution,  nothing  had  been  said  of  a  Vice-Presi- 
dent.  The  Senate  had  been  authorized  to  choose  their 
own  presiding  officer,  and  in  case  of  the  death  or  re 
moval  of  the  President  of  the  United  States,  the  Pres 
ident  of  the  Senate  was  to  become  President.  The 
Convention  had  decided  that  the  President  should  be 
elected  by  Congress  ;  but  there  was  difficulty  in  arrang 
ing  the  details,  and  the  Committee  of  one  from  each 
State  finally  reported  a  new  plan,  providing  for  an 
election  of  President  by  means  of  Electors  appointed 
in  the  several  States.  This  plan  seemed  to  render  de- 


2.  I.  6,  THE   EXECUTIVE— VICE-PRESIDENT.  173 

sirable  the  election  of  a  Vice-President,  and  thus  the 
Constitution  made  provision  for  such  an  officer. 

We  have  seen  that,  according  to  the  Amendment 
adopted  in  1804,  the  Senate  may  choose  a  Vice-Pres 
ide  nt  immediately,  if  there  has  been  no  election  by 
the  people.  If,  therefore,  by  possibility  the  House  of 
Representatives,  when  the  election  devolves  on  them, 
should  fail  to  elect  a  President  by  the  fourth  of  March, 
the  Vice -President  would  become  President. 

Congress  has  provided  by  law1  that  in  case  of  the  re 
moval,  death,  resignation,  or  inability  of  both  President 
and  Vice -President,  the  President  pro  tempore  of  the 
Senate,  and  in  case  there  is  no  such  President,  the 
Speaker  of  the  House  of  Representatives,  shall  act  as 
President  until  the  disability  be  removed,  or  a  Presi 
dent  be  elected.  If  the  Vice-President  becomes  Presi 
dent,  he  holds  the  office  during  the  remainder  of  the  term 
for  which  the  President  was  elected;  if  the  President 
pro  tempore  of  the  Senate,  or  the  Speaker  of  the  House, 
should  be  called  to  act  as  President,  he  would  act  till  a 
new  President  could  be  elected.  Such  special  election 
would  be  held  at  the  same  time  of  the  year  as  the  reg 
ular  election. 

The  act  of  1792  provides  that  "whenever  the  offices  of 
the  President  and  Vice-President  shall  both  become  va 
cant,"  a  special  election  shall  be  held.  This  would  in 
clude  the  case  of  non-election  at  the  regular  time,  for 
which  the  Constitution  does  not  provide ;  hence  the 
constitutionality  of  that  part  of  the  act  has  been 
doubted. 

As  the  Constitution  seems  to  distinguish  between 
members  of  Congress  and  civil  officers,  in  Article  I, 
Section  6,  Clause  2,  and  as  the  President  must  "com 
mission  all  the  officers  of  the  United  States"  (Article 
II,  Section  3),  it  has  been  maintained  by  some  that 


1  March  ls%  1792. 


174  THE  CONSTITUTION.  2.  I.  7. 

neither  the  President  of  the  Senate  nor  the  Speaker  of 
the  House  is  an  ''officer"  in  the  meaning  of  the  Con 
stitution  ;  and,  therefore,  that  the  act  of  1792  has  no 
constitutional  authority,  as  the  Constitution  authorizes 
Congress  to  declare  what  "  officer "  shall  act  as  Presi 
dent.  This  objection  was  made  when  the  bill  was 
under  discussion  in  the  House  of  llepresentatives,  and 
that  body  substituted  the  Secretary  of  State  in  place 
of  the  President  of  the  Senate  and  Speaker  of  the 
House ;  but  as  the  Senate  refused  to  concur  in  this 
substitution,  the  House  receded  from  its  amendment, 
and  the  bill  was  passed  as  it  now  stands. 

A  vacancy  in  the  office  of  President  has  occurred 
three  times,  and  in  each  instance  by  the  death  of  that 
officer.  General  William  Henry  Harrison  died  April 
4th,  1841,  just  one  month  after  his  inauguration,  and 
was  succeeded  by  John  Tyler,  April  6th.  General 
Zachary  Taylor  died  July  9th,  1850,  and  was  succeeded 
by  Millard  Fillmore,  July  10th.  Abraham  Lincoln  was 
assassinated  on  the  night  of  April  14th,  1865,  and  was 
succeeded  by  Andrew  Johnson,  April  15th. 

Clause  7. — The  President  shall,  at  stated  times,  receive 
for  his  services  a  compensation,  which  shall  neither  be  in 
creased  nor  diminished  during  the  period  for  which  he  shall 
have  been  elected,  and  he  shall  not  receive  within  that  period 
any  other  emolument  from  the  United  States,  or  any  of  them. 

The  salary  of  the  President  was  made  twenty-five 
thousand  dollars  a  year,  and  that  of  the  Vice-President 
five  thousand  dollars,  by  act  of  Congress  September 
24th,  1789,  and  again  February  18th,  1793.  The  former 
continued  the  same  to  the  third  of  March,  1873,  when 
it  was  raised  to  fifty  thousand.  The  salary  of  the  Vice- 
President  was  raised  to  eight  thousand  dollars  in  1853, 
to  ten  thousand  March  3d,  1873,  and  reduced  to  eight 
thousand  January  20th,  1874.  A  furnished  house  is  pro 
vided  for  the  President.  The  salaries  are  paid  monthly. 


2.  I.  8.          THE  EXECUTIVE  — OATH  OF  OFFICE. 


175 


Clause  8. — Before  he  enter  on  the  execution  of  his  office, 
he  shall  take  the  following  oath  or  affirmation  : 

"  /  do  solemnly  swear  (or  affirm)  that  I  will  faithfully 
execute  the  office  of  President  of  the  United  States,  and 
will,  to  the  best  of  my  ability,  preserve,  protect,  and  defend 
the  Constitution  of  the  United  States." 

The  oath  is  administered  to  the  President  by  the 
Chief  Justice  of  the  Supreme  Court,  in  connection  with 
the  inauguration  ceremonies,  which  are  held  at  noon  on 
the  fourth  of  March. 

After  the  death  of  President  Harrison,  Mr.  Tyler  took 
'the  oath  prescribed  in  the  Constitution,  "  although  he 
deemed  himself  qualified  to  perform  the  duties  and  ex 
ercise  the  powers  and  office  of  President  without  any 
other  oath  than  that  which  he  took  as  Vice-President." 
The  same  was  done  by  Mr.  Fillmore  and  Mr.  Johnson. 
It  is  said  that  the  Cabinet  of  President  Harrison  pro 
posed  that  Mr.  Tyler  be  styled  "  Acting  President,"  but 
the  proposition  was  declined.  The  Constitution  says 
the  powers  and  duties  of  the  office  "  shall  devolve  on 
the  Vice-President  "  in  case  of  the  removal  of  the  Presi 
dent,  but  that  Congress  shall  declare  what  officer  shall 
"act  as  President,"  when  there  is  neither  President  nor 
Vice-President.  There  appears  to  be  no  reason,  then,  for 
using  the  style  "  Acting  President "  in  the  case  of  the 
Vice-President  succeeding  to  the  office,  whatever  might 
be  done  if  the  President  of  the  Senate  or  the  Speaker 
of  the  House  should  be  called  to  the  Executive  chair. 

Sec.  2,  Clause  I. —  The  President  shall  be  commander- 
in-chief  of  the  army  and  navy  of  the  United  States,  and 
of  the  militia  of  the  several  States  when  called  into  the 
actual  service  of  the  United  States;  he  may  require  the 
opinion,  in  writing,  of  the  principal  officer  in  each  of  the 
executive  departments,  upon  any  subject  relating  to  the 
duties  of  their  respective  offices,  and  he  shall  have  power 


176  THE  CONSTITUTION.  2.  II.  1. 

to  grant  reprieves   and  pardons  for  offenses  against  the 
United  States,  except  in  cases  of  impeachment. 

Most  writers  on  the  Constitution  have  regarded  the 
authority  to  command  the  army  and  navy  as  neces 
sarily  belonging  to  the  Executive  Department.  This 
is  the  opinion  of  Story,  and  Kent,  and  Duer.  Mr.  Tif 
fany  thinks,  however,  that  the  duties  of  the  President 
as  military  head  of  the  nation  may  be  contemplated 
as  distinct  from  those  devolving  on  him  as  the  chief 
magistrate.  "The  powers  and  duties  of  the  President 
as  commander-in-chief  of  the  army  and  navy  are  sepa 
rate  and  distinct  from  his  powers  and  duties  as  the 
simple  Executive  head  of  the  nation;  and  neither  of 
those  functions  of  the  presidential  office  derives  any 
strength  from  the  other.  As  the  chief  Executive  of  the 
nation  he  takes  no  authority  from  the  military  depart 
ment  of  his  office;  and  as  commander-in-chief  he  gets  no 
aid  from  the  civil  department  of  the  same.  That  is,  his 
authority  as  commander-in-chief  is  the  same  as  it  would 
have  been,  had  it  been  an  office  separated  from,  and 
independent  of,  the  office  of  President  of  the  United 
States.  Had  the  Constitution  provided  for  the  appoint 
ment  of  some  other  person  than  the  presidential  incum 
bent  to  that  office,  the  powers  and  duties  of  the  office 
would  have  been  the  same."1 

Whatever  may  be  true  in  theory,  there  are  great  prac 
tical  advantages  in  making  the  President  the  military 
as  well  as  the  civil  head  of  the  nation. 

The  only  reference  in  the  Constitution  to  the  heads 
of  the  executive  departments  is  found  in  this  and  the 
following  clauses.  The  language  implies  that  such  de 
partments  would  be  established,  but  the  Constitution 
neither  in  Section  8,  of  Article  I,  nor  elsewhere,  speci 
fies  the  power  to  establish  them  as  one  of  the  powers 


tiffany's  Treatise,  p.  340. 


2.  II.  1.  THE  EXECUTIVE  —  PARDONS.  177 

belonging  to  Congress.  The  heads  of  these  departments 
are  the  advisers  of  the  President.  Collectively  they  are 
called  his  Cabinet.  They  have  frequent  meetings  at 
which  measures  are  discussed,  and  in  addition  their 
written  opinions  are  given  to  the  President  whenever 
he  requires  them.  The  opinions  of  the  Attorney- 
Generals  fill  a  number  of  volumes. 

A  reprieve  suspends  for  a  time  the  execution  of  a 
sentence,  especially  when  the  criminal  has  been  sen 
tenced  to  death.  A  pardon  is  a  full  release  from  the 
punishment  which  would  otherwise  be  inflicted.  The 
power  to  reprieve  or  pardon  implies  the  possible  im 
perfection  of  human  justice.  Circumstances  may  come 
to  light  after  a  trial  which,  had  they  been  known  be 
fore,  would  have  secured  a  different  result.  This  pre 
rogative  of  mercy  is  found  in  all  civilized  governments, 
and  it  is  properly  lodged  with  the  Executive.  Our 
Constitution  gives  it  to  the  President,  except  in  cases 
of  impeachment.  "The  power  of  impeachment  will 
generally  be  applied  to  persons  holding  high  offices 
under  the  government ;  and  it  is  of  great  consequence 
that  the  President  should  not  have  the  power  of  pre 
venting  a  thorough  investigation  of  their  conduct, 
or  of  securing  them  against  the  disgrace  of  a  public 
conviction  by  impeachment,  if  they  should  deserve 
it."  (Story.) 

The  same  writer  thinks  the  President  would  have 
no  authority  to  pardon  in  case  of  contempts ;  as  it 
would  tend  to  make  the  legislative  bodies  wholly  de 
pendent  upon  his  good  will  and  pleasure  for  the  exer 
cise  of  their  own  powers. 

The  language  of  the  Constitution  is  that  the  Presi 
dent  shall  have  power  "to  grant  reprieves  and  par 
dons."  For  the  meaning  and  use  of  the  expression 
"  to  grant  pardons,"  we  are  referred  to  the  English 
law,  which  allowed  the  king  as  the  sovereign  to  pardon 
before  trial  as  well  as  after.  Was  this  the  intention 


178  THE  CONSTITUTION.  2.  II.  1. 

of  the  framers  of  our  Constitution  ?  Judge  Field,  in 
giving  the  opinion  of  the  Supreme  Court  in  the  case 
of  Garland,  said:  u  The  power  thus  conferred  is  un 
limited,  with  the  exception  stated:  it  extends  to  every 
offense  known  to  the  law,  and  may  be  exercised  at  anv 
time  after  its  commission,  either  hefore  legal  proceed 
ings  are  taken,  or  during  their  pendency,  or  after  con 
viction  and  judgment." 

Mr.  Tiffany  views  the  matter  differently.  "To  par 
don  or  reprieve  a  man  implies  that  he  has  become,  in 
the  eye  of  the  law,  the  subject  of  punishment  to  be 
inflicted  upon  him.  It  implies  that  the  law  has  pro 
nounced  him  guilty,  and  denounced  upon  him  the 
penalty.  The  Executive,  as  an  officer  of  the  law,  can 
know  nothing  of  the  guilt  or  innocence  of  a  party,  or 
of  his  need  of  a  reprieve  or  pardon,  until  his  guilt  has 
been  judicially  ascertained.  No  reprieve  or  pardon  can, 
in  law,  be  granted,  until  there  be  that  from  which  a 
reprieve  is  needed,  or  for  which  a  pardon  is  demanded."1 
"There  may  be  cases  as  in  rebellion  or  civil  war  where 
a  large  class  of  citizens  may  need,  and  public  policy 
may  require,  an  amnesty  in  their  behalf.  But  such 
exigency  addresses  itself  to  the  legislative,  not  to  the 
executive  department  of  government." 2 

This  seems  to  have  been  the  view  of  Congress  when, 
by  act  of  July,  1862,  they  authorized  the  President  to 
extend  pardon  and  amnesty  by  proclamation  to  those 
in  rebellion  against  the  government,  with  such  condi 
tions  as  he  might  deem  expedient.  On  the  third  of 
December,  1863,  President  Lincoln  issued  an  amnesty 
proclamation,  referring  to  the  action  of  Congress.  Other 
proclamations  were  issued  by  Mr.  Lincoln  and  Mr. 
Johnson  prior  to  the  repeal  of  the  section  authorizing 
such  offers  of  amnesty.  The  latter,  however,  issued 
proclamations  of  like  character  after  the  repeal— Jan- 


Tiffany,  p.  335.    2  Ibid  p.  338. 


2.  II.  2.  THE  EXECUTIVE— TREATIES.  179 

uary  19th,  1867 — giving  the  Constitution  as  his  au 
thority,  in  answer  to  an  inquiry  made  by  the  Senate. 
President  Fillmore  granted  a  conditional  pardon  to  a 
man  convicted  of  murder  and  sentenced  to  be  hung. 
The  condition  was  that  he  be  imprisoned  during  his 
life.  It  was  commuting  the  sentence  of  death  to  im 
prisonment  for  life.  The  Supreme  Court  held  that 
such  a  pardon  was  within  the  power  of  the  President. 

Clause  2. — He  shall  have  power,  by  and  with  the  ad 
vice  and  consent  of  the  Senate,  to  make  treaties,  provided 
two-thirds  of  the  Senators  present  concur;  and  he  shall 
nominate,  and  by  and  with  the  advice  and  consent  of  the 
Senate,  shall  appoint  Ambassadors,  other  public  Minis 
ters  and  Consuls,  Judges  of  the  Supreme  Court,  and  all 
other  officers  of  the  United  States,  whose  appointments  are 
not  herein  otherwise  provided  for,  and  which  shall  be  es 
tablished  by  law;  but  the  Congress  may  by  law  vest  the 
appointment  of  such  inferior  officers  as  they  think  proper, 
in  the  President  alone,  in  the  Courts  of  law,  or  in  the 
heads  of  Departments. 

The  "advice  and  consent"  of  the  Senate,  both  in 
making  treaties  and  in  appointments  to  office,  is,  in 
practice,  consent  rather  than  advice.  The  treaty  is 
made  and  then  sent  to  the  Senate  for  their  concur 
rence.  A  nomination  is  made  by  the  President  and 
the  Senate  acts  upon  the  question  of  confirmation. 

A  treaty  is  an  agreement  or  contract  between  two 
nations.  In  Great  Britain  the  power  to  make  treaties 
is  in  the  Crown.  In  a  republic  the  people  may  place 
it  where  they  choose.  The  wisdom  of  giving  it  to  the 
President  and  Senate  will  hardly  be  questioned.  To 
give  it  to  the  President  alone  would  intrust  to  him 
more  power  than  is  consistent  with  the  nature  of  our 
government.  It  could  not  well  be  placed  in  Congress 
because  of  the  promptness  and  secrecy  often  necessary. 


180  THE  CONSTITUTION.  2.  II.  2. 

By  requiring  the  concurrence  of  two-thirds  of  the  Sen 
ate  with  the  President  the  Constitution  has  provided 
as  ample  a  guaranty  as  could  well  be  required  for  the 
maintenance  of  the  rights  and  honor  of  the  country. 

While  the  power  to  make  treaties  is  general  and  un 
restricted  it  is  not  to  be  so  construed  as  to  destroy  the 
fundamental  laws  of  the  land.  "  A  treaty  to  change 
the  organization  of  the  government,  to  annihilate  its 
sovereignty,  to  overturn  its  republican  form,  or  to  de 
prive  it  of  its  constitutional  powers,  would  be  void;  be 
cause  it  would  destroy  what  it  was  designed  merely  to 
fulfill,  the  will  of  the  people"  (Story). 

Cases  may  arise  where  a  given  end  may  be  reached 
either  by  a  treaty  or  by  ordinary  legislation.  Thus, 
Congress  authorized  the  admission  of  the  Republic  of 
Texas  in  either  of  two  modes— by  treaty,  to  be  nego 
tiated  by  the  Executive  with  that  Republic;  or  b}^  the 
acceptance,  on  the  part  of  Texas,  of  certain  terms  speci 
fied  in  the  joint  resolution  of  the  two  Houses.  "  The 
annexation  was  made,  in  fact,  by  the  acceptance  of  the 
propositions  of  Congress.  So  that  the  treaty  was  made 
directly  with  Texas  by  Congress,  and  not  by  the  Presi 
dent  with  the  advice  and  consent  of  two-thirds  of  the 
members  of  the  Senate,  as  the  treaty-making  power." l 

If  a  treaty  made  by  the  President  and  Senate  with 
a  foreign  power  involve  the  payment  of  money,  can 
Congress  exercise  any  discretion  as  to  the  appropria 
tion  ?  This  question  came  up  during  the  administra 
tion  of  President  Washington,  and  was  debated  with 
great  earnestness  in  the  House  of  Representatives. 
The  treaty  was  one  made  by  Mr.  Jay  with  Great  Brit 
ain,  and  in  some  of  its  features  was  obnoxious.  The 
House  by  a  large  majority  passed  a  resolution,  that 
whenever  a  treaty  required  laws  to  be  passed  to  carry 
it  into  effect,  they  had  a  constitutional  right  to  delib- 


1  Farrar,  p.  333. 


3.  II.  2.  THE  EXECUTIVE— TREATIES.  181 

erate  and  determine  the  propriety  or  impropriety  of 
passing  such  laws,  and  to  act  thereon  as  the  public 
good  should  require.  Shortly  after,  however,  Congress 
passed  a  law  to  carry  the  treaty  into  effect. 

Says  Chancellor  Kent,  "  If  a  treaty  be  the  law  of  the 
land,  it  is  as  much  obligatory  upon  Congress  as  upon 
any  other  branch  of  the  government  or  upon  the  people 
at  large,  so  long  as  it  continues  in  force  and  unre- 
pealed." l 

It  is  claimed  that  whenever  territory  has  been  ac 
quired  by  treaty,  Congress  has  been  consulted  before 
hand;  that  in  the  three  great  cases  of  the  purchase  of 
Louisiana,  of  Florida,  and  of  California,  Presidents  Jef 
ferson,  Monroe,  and  Polk  consulted  Congress  beforehand 
to  ascertain  its  wishes  in  the  matter,  thus  apparently 
recognizing  the  authority  of  the  House  of  Representa 
tives  to  make  or  refuse  the  necessary  appropriations. 

As  the  Constitution  (Article  VI.)  expressly  makes 
treaties,  no  less  than  the  statutes  enacted  by  Congress, 
to  be  the  supreme  law  of  the  land,  might  not  a  treat}'- 
stipulation  for  the  payment  of  money  be  construed  to 
be  an  appropriation  made  by  law,  according  to  the 
meaning  and  intent  of  the  Constitution?  If  so,  the 
money  might  be  lawfully  drawn  from  the  treasur}T, 
even  if  Congress  made  no  appropriations. 

It  is  evident,  however,  that  the  framers  of  the  Con 
stitution  did  not  contemplate  the  purchase  of  territory 
as  belonging  to  the  treaty-making  power,  and  President 
Jefferson  at  the  time  Louisiana  was  purchased  admit 
ted  that  the  authority  to  make  the  purchase  was  not 
given  to  the  government  in  the  Constitution.  As,  prior 
to  the  purchase  of  Alaska,  Congress  has  always  been 
consulted  whenever  it  was  proposed  to  enlarge  our  do 
main,  and  as  there  are  grave  doubts  whether  the  ac 
quisition  of  territory  comes  within  the  province  of 


1  Vol.  I,  p.  256. 


182  THE  CONSTITUTION.  2.  II.  2. 

treaties,  it  seems  desirable  that  in  all  such  cases  the 
consent  of  Congress  should  be  obtained. 

In  framing  a  treaty  the  President  acts  through  the 
Secretary  of  State,  a  foreign  minister,  or  a  plenipoten 
tiary  appointed  for  the  purpose.  The  treaty  is  signed 
by  the  representatives  of  the  two  nations,  and  then  sub 
mitted  to  the  respective  governments  for  their  ratifica 
tion.  After  the  ratifications  have  been  exchanged,  the 
President  issues  his  proclamation,  making  the  treaty 
public,  "to  the  end  that  it  may  be  observed  with  good 
faith  by  the  United  States  and  the  citizens  thereof." 

In  discussing  a  treaty,  as  well  as  in  considering  a 
nomination,  the  Senate  sit  with  closed  doors.  It  is 
called  going  into  Executive  session.  Two-thirds  of  the 
members  present  must  concur  in  the  ratification  of  a 
treaty,  while  a  majority  is  sufficient  to  confirm  a  nom 
ination  to  office. 

Nominations  are  sent  to  the  Senate  by  the  President 
in  writing.  The  nomination  is  by  the  President  alone. 
The  Senate  can  confirm  the  nomination  or  reject  it,  but 
the}r  can  not  make  the  nomination.  The  wisdom  of 
this  mode  of  appointment  is  thus  stated  by  Mr.  Ham 
ilton  :  "  The  blame  of  a  bad  nomination  would  fall  upon 
the  President  singly  and  absolutely.  The  censure  of 
rejecting  a  good  one  would  lie  entirely  at  the  door  of 
the  Senate;  aggravated  by  the  consideration  of  their 
having  counteracted  the  good  intentions  of  the  Execu 
tive.  If  an  ill  appointment  should  be  made,  the  Ex 
ecutive  for  nominating,  and  the  Senate  for  approving, 
would  participate,  though  in  different  degrees,  in  the 
opprobrium  and  disgrace."  l 

The  Constitution  provides  that  Ambassadors,  other 
public  ministers  and  consuls,  and  Judges  of  the  Supreme 
Court,  must  be  appointed  by  the  President  and  Senate ; 
but  such  "  inferior  officers  "  as  Congress  may  designate, 


1  Federalist,  No.  77. 


2.  II.  2.  THE   EXECUTIVE— APPOINTMENTS.  183 

may  be  appointed  by  the  President  alone,  by  the  courts, 
or  by  the  heads  of  departments.  It  has  not  been  deter 
mined  who  are,  or  who  are  not,  "inferior  officers;"  but 
it  may  be  considered  settled  that  the  heads  of  depart 
ments  do  not  belong  to  this  class.  If  Congress  does 
not  vest  the  appointment  of  •  any  officer  in  the  President 
alone,  in  the  courts,  or  in  the  head  of  a  department, 
then,  as  a  matter  of  course,  the  President  and  Senate 
appoint,  no  matter  how  insignificant  the  office  may  be. 

The  courts  have  been  invested  with  very  little  power 
of  appointment;  but  the  heads  of  departments  have 
had  large  power  of  this  kind.  Former^,  the  Post 
master-General  could  appoint  and  remove  all  deputy 
postmasters.  This  gave  him  an  enormous  patronage, 
which  was  continually  increasing.  But  the  Thirty- 
seventh  Congress,  at  its  third  session,  enacted  that  the 
Postmaster-General  should  appoint  those  deputies  only 
whose  compensation  is  less  than  one  thousand  dollars 
a  year,  all  others  being  appointed  by  the  President. 

While  the  Constitution  makes  provision  for  appoint 
ment  to  office,  it  says  nothing  in  regard  to  removal 
from  office.  At  the  time  the  Constitution  was  under 
discussion  in  the  States,  its  friends  spoke  of  the  consent 
of  the  Senate  as  no  less  necessary  for  the  removal  of  an 
officer  than  for  his  appointment.1  But  in  the  First  Con 
gress  the  question  came  up  in  the  House  of  Represent 
atives,  and  was  discussed  at  great  length.  In  a  bill  es 
tablishing  a  Department  of  Foreign  Affairs — now  called 
the  Department  of  State — it  was  provided  that  the  Sec 
retary  might  be  removed  by  the  President.  The  debate 
occurred  on  a  motion  to  strike  out  this  provision. 

It  was  maintained  on  the  one  side  that  the  power  to 
appoint  and  the  power  to  remove  must  go  together;  if 
the  President  could  appoint  only  with  the  consent  of  the 


1  "The  consent  of  that  body  would  be  necessary  to  displace  as  well 
as  to  appoint." — Federalist,  No.  77. 


184  THE   CONSTITUTION.  2.  II.  2. 

Senate,  their  consent  must  also  be  necessary  to  remove. 
On  the  other  side  it  was  held  that  appointing  to  office 
and  removing  therefrom  were  executive  acts.  If  the 
Constitution  had  not  associated  the  Senate  with  the 
President  in  the  matter  of  appointments,  Congress 
could  not  have  given  them  that  power;  and  as  the 
Constitution  had. not  conferred  upon  the  Senate  the 
p  >wer  to  unite  with  the  President  in  removal,  Congress 
\vn*  not  authorized  to  associate  them  with  the  Presi 
dent  in  removing  from  office.1  The  bill,  with  the  pro 
vision  authorizing  the  President  to  remove  from  office, 
finally  passed  the  House  of  Representatives  by  a  vote 
of  twenty-nine  to  twenty-two,  and  the  Senate  by  a  ma 
jority  of  two.2  How  strong  was  the  opposition  to  giving 
such  power  to  the  President  appears  from  the  language 
of  Mr.  Sumter,  of  South  Carolina,  who  said:  "This  bill 
appears,  to  my  mind,  so  subversive  of  the  Constitution, 
and  in  its  consequences  so  destructive  of  the  liberties 
of  the  people,  that  I  can  not  let  it  pass  without  ex 
pressing  my  detestation  of  the  principle  it  involves."3 
"  That  the  final  decision  of  this  question  in  favor  of 
the  executive  power  of  removal  was  greatly  influenced 
by  the  exalted  character  of  the  President  then  in  office, 
was  asserted  at  the  time,  and  has  always  been  believed; 
yet  the  doctrine  was  opposed,  as  well  as  supported,  by 
the  highest  talents  and  patriotism  of  the  country.  The 
public,  however,  acquiesced  in  the  decision ;  and  it  con 
stitutes,  perhaps,  the  most  extraordinary  case  in  the  his 
tory  of  the  government  of  a  power  conferred  by  impli 
cation  on  the  Executive  by  the  assent  of  a  bare  majority 
of  Congress,  which  has  not  been  questioned  on  many 
other  occasions."  (Story.) 


1  Annals  of  Congress  I,  p.  463. 

2  When  the  question  first  came  before  the  Senate,  some  members 
were  absent,  and  the  Senate  were  equally  divided,  the  Vice -President 
giving  the  casting  vote. — Pitkin's  History,  vol.  II,  p.  326. 

'•'  Annals  of  Congress  I,  p.  591. 


2.  II.  2.  THE  EXECUTIVE  — REMOVALS.  185 

For  forty  years  after  the  adoption  of  the  Constitution 
there  were  very  few  removals  from  office,  except  as  a 
public  necessity  to  secure  greater  efficiency  in  the  dis 
charge  of  official  duty.  Such,  unquestionably,  was  the 
expectation  when  the  Constitution  was  formed.  Mr. 
Madison,  in  the  debate  referred  to  above,  used  the  fol 
lowing  language:  "I  contend  that  the  wanton  removal 
of  meritorious  officers  would  subject  him  (the  Presi 
dent)  to  impeachment  and  removal  from  his  own  high 
trust." l  "  It  can  not  be  doubted,"  says  Mr.  Tiffany, 
"that  the  practice  of  creating  vacancies  by  removals 
from  office,  without  any  reference  to  the  fidelity  or 
efficiency  of  those  removed,  or  to  the  better  qualifica 
tions  or  character  of  those  who  are  appointed  to  their 
places,  is  a  violation  of  both  the  letter  and  the  spirit 
of  the  Constitution." 2 

But,  although  for  many  years  men  were  appointed  to 
office  for  their  fitness,  a  change  had  taken  place  before 
the  first  half  century  had  elapsed.  In  1835,  during  the 
second  term  of  General  Jackson's  administration,  a 
Committee  of  the  Senate,  Mr.  Calhoun  Chairman,  ap 
pointed  to  investigate  the  subject  of  ''Executive  Pat 
ronage,"  used  the  following  language  in  their  report: 
u  It  is  easy  to  see  that  the  certain,  direct,  and  inevita 
ble  tendency  of  this  practice  is  to  convert  the  entire 
body  of  those  in  office  into  corrupt  and  supple  instru 
ments  of  power,  and  to  raise  up  a  host  of  hungry, 
greedy,  and  subservient  partisans,  ready  for  every 
service,  however  base  and  corrupt.  Were  a  premium 
offered  for  the  best  means  of  extending  to  the  utmost 
the  power  of  patronage  ;  to  destroy  the  love  of  country 
and  substitute  a  spirit  of  subserviency  and  man-wor 
ship;  to  encourage  vice  and  discourage  virtue;  and,  in 
a  word,  to  prepare  for  the  subversion  of  liberty  and 
the  establishment  of  despotism,  no  scheme  more  perfect 


1  Annals  of  Congress  I,  p.  497.  2  Treatise,  p.  350. 

C.  G.  16. 


186  THE    CONSTITUTION.  2.  II.  2. 

could  be  devised.  *  *  The  question  now  is,  not  how, 
or  where,  or  with  whom,  the  danger  originated,  but  how 
it  is  to  be  arrested;  not  the  cause,  but  the  remedy."1 

Although  bills  had  been  introduced  into  Congress  to 
limit  the  President's  power  of  removal,  no  bill  to  that 
effect  was  passed  until  1866.  In  July  of  that  year  it 
was  enacted  that  "  No  officer  in  the  military  or  naval 
service  shall,  in  time  of  peace,  be  dismissed  from  serv 
ice  except  upon  and  in  pursuance  of  the  sentence 
of  a  court  martial  to  that  effect,  or  in  commutation 
thereof."  This  was  under  the  administration  of  Presi 
dent  Andrew  Johnson.  In  March,  1867,  an  "  Act  regu 
lating  the  tenure  of  civil  offices"  was  passed,  which 
provided  that  the  President  might  suspend  an  officer 
during  a  recess  of  the  Senate,  reporting  the  same  with 
the  reasons  for  it  to  the  Senate  within  twenty  days 
after  their  assembling;  if  the  Senate  should  concur  in 
the  removal,  another  person  might  be  appointed.  But 
if  the  Senate  should  not  concur,  the  suspended  officer 
was  to  resume  his  duties.  This  bill  was  vetoed  by 
President  Johnson,  but  passed  over  his  veto  by  a  large 
majority  in  each  House.  It  was  chiefly  for  violating 
the  provisons  of  this  act,  in  removing  Secretary  Stan- 
ton  after  the  Senate  had  refused  to  concur  in  his  sus 
pension,  that  the  House  of  Representatives  brought 
articles  of  impeachment  against  the  President.2 

Thus,  after  more  than  three-quarters  of  a  century,  the 
legislative  construction  given  to  the  Constitution  in 
1789,  was  reversed  in  1867.  In  each  case  the  action  of 
Congress  was  doubtless  largely  influenced  by  their  esti 
mate  of  the  character  of  the  Executive.  The  question 
has  never  yet  been  the  subject  of  judicial  construction. 

The  frequent  changes  in  office,  and  the  appointment 
of  men  often  sadly  deficient  in  intellectual  and  moral 


1  Senate  Doc.,  2d  Sesa.,  23d  Cong.,  vol.  3,  No.  109. 

2  This  act  was  modified  by  act  of  April  5th,  1869. 


2.  II.  3.     THE   EXECUTIVE  — FILLING  VACANCIES.  187 

qualifications,  form  one  of  the  sources  of  official  cor 
ruption.  The  subject  of  "Civil  Service  Reform"  has 
been  largely  discussed  within  the  last  few  years,  and 
various  plans  have  been  suggested  to  remedy  existing 
evils.  Three  things  have  been  affirmed  to  be  requi 
site  in  order  to  bring  about  a  reform:  a  competitive 
examination  of  all  candidates  for  subordinate  offices; 
promotion  to  higher  grades  on  the  principle  of  service 
and  desert;  and  a  tenure  of  office  during  good  behavior, 
or  for  a  term  of  years. 

Clause  3. — The  President  shall  have  power  to  fill  up 
all  vacancies  that  may  happen  during  the  recess  of  the 
Senate,  by  granting  commissions  which  shall  expire  at 
the  end  of  their  next  session. 

When  an  appointment  has  been  made  in  the  usual 
mode,  that  is,  the  President  having  nominated  and 
the  Senate  having  confirmed,  the  commission  is  not 
made  out  till  the  Senate  have  signified  their  concur 
rence.  If  the  person  nominated  by  the  President  is 
rejected  by  the  Senate,  of  course  no  commission  is 
issued.  But  when  a  vacancy  is  filled  in  the  recess  of 
the  Senate,  the  President  grants  a  commission,  which 
continues  in  force  until  the  end  of  their  next  session. 
If  the  President  nominates  to  the  Senate  one  whom 
he  had  thus  appointed  and  commissioned,  and  the 
Senate  confirms  the  nomination,  a  new  commission  is 
issued,  and,  if  a  bond  had  been  given  under  the  first 
appointment,  a  new  one  is  required. 

Suppose  a  vacancy  had  been  filled  by  the  President 
in  the  recess  of  the  Senate,  and  the  officer  thus  ap 
pointed  should  be  nominated  to  the  Senate  at  their 
next  session,  and  be  rejected ;  could  the  President,  after 
the  adjournment  of  the  Senate,  re-appoint  the  same 
person?  Would  this  be  a  "vacancy"  in  the  meaning 
of  the  Constitution?  If  the  Senate  have  rejected  an 
officer,  the  President  should  not  appoint  him  to  the 


188  THE  CONSTITUTION.  2.  III. 

same  office.  The  consent  of  the  Senate  to  an  appoint 
ment  is  clearly  required  by  the  Constitution,  and  that 
instrument  contemplates  action  by  the  President  alone 
only  when  there  is  no  opportunity  to  consult  the 
Senate.  If  the  Senate  take  no  action  upon  a  nomi 
nation,  the  President,  whose  duty  it  is  to  see  that  the 
laws  are  executed,  must  make  the  appointment  himself. 
This  occurred  under  the  administration  of  President 
J.  Q.  Adams.  President  Monroe  made  a  nomination 
which  was  rejected,  and  after  the  expiration  of  the 
session  filled  the  vacancy  by  an  appointment.  Presi 
dent  Jackson  nominated  a  person  whom  the  Senate 
rejected,  and  he  subsequently  renewed  the  nomination 
of  the  same  person.  The  Senate  laid  the  nomination 
on  the  table,  and  adjourned  without  taking  further 
action  on  the  subject.  After  the  adjournment  of  the 
Senate,  the  President  appointed  the  man.  It  would 
have  been  better  if  the  Senate  had  acted  upon  the 
nomination.  The  nomination  having  been  made  the 
second  time  could  again  have  been  rejected.  In  that 
case  the  President  would  have  felt  compelled  to  make 
a  different  appointment. 

Section  3. — He  shall  from  time  to  time  give  to  the 
Congress  information  of  the.  state  of  the  Union,  and 
recommend  to  their  consideration  such  measures  as  he 
shall  judge,  necessary  and  expedient;  lie  may,  on  extra 
ordinary  occasions,  convene  both  Houses,  or  either  of 
them,  and  in  case  of  disagreement  between  them  with  re 
spect  to  the  time  of  adjournment,  he  may  adjourn  them 
to  such  time  as  he  shall  think  proper;  he  shall  receive 
ambassadors  and  other  public  minister*:  he  shall  take 
care  that  the  laws  be  faithfully  executed,  and  shall  com 
mission  all  the  officers  of  the  United  State*. 

It  is  customary  for  the  President,  at  the  beginning 
of  each  regular  session,  to  send  a  message  to  Congress, 


2.  III.  THE    EXECUTIVE  —  DUTIES.  189 

which  contains  a  summary  of  the  reports  from  the 
heads  of  departments,  and  a  general  account  of  the 
operations  of  the  government  for  the  year,  with  such 
suggestions  as  he  may  deem  expedient.  Accompany 
ing  the  message  are  the  full  reports  of  the  various 
departments,  and  documents  containing  detailed  infor 
mation  as  to  every  branch  of  the  government.  The 
"Message  and  Documents"  and  "Executive  Documents" 
fill  annually  a  number  of  octavo  volumes.  The  Presi 
dent  also  sends  special  messages  from  time  to  time, 
recommending  such  measures  of  legislation  as  he 
thinks  the  interests  of  the  country  require,  or  con 
taining  information  requested  by  Congress. 

President  Washington  delivered  his  first  message  to 
both  Houses  assembled  in  the  Senate  Chamber.  He 
continued  to  deliver  his  messages  in  person  at  the 
opening  of  each  session  of  Congress,  during  the  eight 
years  of  his  administration,  and  his  example  was  fol 
lowed  by  Mr.  Adams.  Each  House  appointed  a  com 
mittee  to  prepare  a  reply,  which,  when  adopted  by 
the  House,  was  presented  to  the  President.  This  was 
in  accordance  with  the  custom  of  England  and  other 
constitutional  governments.  Mr.  Jefferson,  however, 
preferred  to  send  his  message,  to  be  read  to  each  House 
by  its  clerk.  There  was  no  expectation  of  an  answer. 
This  custom  has  been  followed  to  the  present  time. 

The  authority  given  to  the  President  to  convene 
Congress  has  been  used  on  eight  occasions.  President 
Adams  called  an  extraordinary  session  for  May  15th, 
1797,  on  account  of  the  difficulties  with  France;  Presi 
dent  Madison,  May  22d,  1809,  and  again  May  24th,  1813 
both  because  of  difficulties  with  England;  President 
Van  Buren,  September  4th,  1837,  to  consider  the  finan 
cial  condition  of  the  country ;  President  Harrison,  May 
31st,  1841,  for  the  same  purpose;  President  Pierce, 
August  21st,  1856,  because  of  the  Kansas  troubles; 
President  Lincoln,  July  4th,  1861,  on  account  of  the 


190  THE  CONSTITUTION.  2.  III. 

rebellion  in  the  south  ;  President  Hayes,  October  15th, 
1877,  for  want  of  an  appropriation  for  the  Army.  Pres 
ident  Jefferson  convened  Congress  October  17th,  1£03, 
three  weeks  earlier  than  usual,  because  of  the  purchase 
of  Louisiana,  and  the  difficulties  with  Spain. 

The  House  of  Representatives  has  never  been  con 
vened  alone,  but  the  Senate  has  often  been,  for  execu 
tive  business. 

No  case  has  yet  arisen  of  disagreement  between  the 
two  Houses  in  regard  to  the  time  of  adjournment,  and 
therefore  the  President  has  never  bad  occasion  to  use 
the  contingent  power  of  adjourning  them.  In  England 
the  sovereign  may  at  any  time  prorogue  or  dissolve 
Parliament.  . 

The  President  is  to  receive  ambassadors  and  other 
public  ministers.  Diplomatic  intercourse  with  other 
nations  is  carried  on  through  the  Executive  Depart 
ment.  Instructions  to  our  foreign  ministers,  though 
bearing  the  signature  of  the  Secretary  of  State,  are 
always  in  the  name  and  by  the  order  of  the  President. 
To  receive  an  ambassador  or  other  public  minister  is  to 
recognize  the  country  from  which  he  comes  as  belong 
ing  to  the  commonwealth  of  nations.  The  Southern 
Confederacy  made  great  efforts  to  secure  such  recogni 
tion  from  Great  Britain  and  France  during  the  war  of 
the  rebellion. 

The  power  to  receive  involves  the  power  to  refuse 
to  receive,  or  to  reject  and  dismiss.  This  may  be  done 
for  reasons  pertaining  to  the  minister  himself,  as  in 
the  case  of  M.  Genet,  the  French  minister,  whom 
President  Washington  requested  France  to  recall  in 
1794,  or  on  account  of  the  relations  of  the  two  govern 
ments. 

The  President  "shall  take  care  that  the  laws  be 
faithfully  executed,  and  shall  commission  all  officers 
of  the  United  States."  To  see  that  the  laws  are  exe 
cuted  is  the  great  duty  of  the  President.  He  is  not  to 


2.  IV.  IMPEACHMENT.  191 

make  the  laws,  or  repeal  them,  save  as  the  Constitu 
tion  gives  him  a  qualified  negative  in  their  enact- 
.  ment,  but  to  take  care  that  the  laws  are  duly  enforced. 
When  the  meaning  of  a  law  is  judicially  called  in 
question,  it  is  not  the  province  of  the  President  to 
decide  as  to  the  true  meaning  and  intent  of  the  stat 
ute;  this  belongs  to  the  Courts.  He  may  differ  from 
the  Supreme  Court  as  to  the  interpretation  of  a  law,  or 
a  clause  of  the  Constitution,  or  he  may  think  a  stat 
ute  unwise  or  inexpedient;  still,  whatever  has  been 
enacted  in  accordance  with  the  forms  prescribed  by 
the  Constitution,  must  be  executed  in  good  faith  by  the 
President.  For  this  purpose  he  is  clothed  with  great 
power;  the  army  and  navy  are  under  his  orders. 
Either  directly  or  indirectly  all  executive  offices  are 
filed  by  men  of  his  selection.  It  is  his  duty,  therefore, 
to  see  that  none  are  appointed  to  office  but  those  who 
are  honest  and  capable. 

Section  4. —  The  President,  Vice- President,  and  all 
civil  officers  of  the  United  States,  shall  be  removed  from 
office  on  impeachment  for,  and  conviction  of,  treason,  brib 
ery,  or  other  high  crimes  and  misdemeanors. 

The  other  instances  in  which  impeachments  are  al 
luded  to  in  the  Constitution  are  these:  The  House  of 
Representatives  shall  have  the  sole  power  of  impeach 
ment  ;  The  Senate  shall  have  the  sole  power  to  try  im 
peachments;  When  the  President  of  the  United  States 
is  tried,  the  Chief  Justice  shall  preside ;  In  trials  for 
impeachments,  the  Senate  shall  be  on  oath  or  affirma 
tion,  and  the  concurrence  of  two-thirds  shall  be  neces 
sary  for  conviction;  Judgment  shall  not  extend  fur 
ther  than  to  removal  from  office,  and  disqualification 
to  hold  and  enjoy  an  office  of  honor,  trust,  or  profit 
under  the  United  States:  The  party  convicted  may 
also  be  tried  and  punished  according  to  law ;  The 
President  has  power  to  grant  reprieves  and  pardons 


192  THE  CONSTITUTION.  2.  IV. 

for  offenses  against  the  United  States,  except  in  cases 
of  impeachment;  The  trial  of  all  crimes,  except  in 
cases  of  impeachment,  shall  be  by  jury. 

While  it  is  clear  that  the  House  of  Representatives 
only  can  prefer  articles  of  impeachment,  and  the  Sen 
ate  only  can  try  impeachments,  it  is  not  clear  who 
may  be  impeached.  The  present  section  prescribes  a 
minimum  punishment  for  all  "civil  officers  "  on  con 
viction,  but  the  Constitution  nowhere  defines  "civil 
officers,"  nor  does  it  say  that  others  are  not  liable  to 
impeachment.  The  term  civil  is  here  supposed  to  be 
used  in  distinction  from  military  and  naval.  Some  un 
derstand  that  members  of  Congress  are  not  included 
under  the  designation  "civil  officers,"  as  Section  3, 
Article  II,  provides  that  the  President  "shall  commis 
sion  all  the  officers  of  the  United  States."  As  members 
of  Congress  are  not  commissioned  by  the  President  it 
is  inferred  that  they  are  not  "officers"  in  the  sense  of 
the  Constitution. 

Articles  of  impeachment  were  brought  against  Wil 
liam  Blount,  United  States  Senator  from  Tennessee, 
in  1797.  The  day  after  the  resolution  to  impeach 
passed  the  House,  Mr.  Blount  was  expelled  from  the 
Senate,  by  a  vote  of  twenty-five  to  one.  Action,  how 
ever,  was  taken  by  both  Houses  for  going  on  with  the 
impeachment.  Articles  of  impeachment  were  agreed  to 
January  29th,  1798,  and  the  Senate  summoned  Mr. 
Blount  to  appear  and  answer  in  the  December  following. 
At  that  time  the  Senate  formed  itself  into  a  Court,  and 
counsel  for  the  defendant  appeared  and  filed  a  plea 
that  the  Senato  could  not  impeach  one  who  was  not 
then  a  Senator,  and  who  was  not  an  officer  of  the  United 
States  when  the  offenses  charged  were  committed.  The 
question  of  jurisdiction  was  then  argued,  and  the  court 
decided,1  fourteen  to  eleven,  that  they  had  no  jurisdic- 


1  Annals  of  Congress.  5th  Congress. 


2.  IV.  IMPEACHMENT.  193 

tion,  and  so  the  case  ended.  The  decision  is  supposed 
to  have  been  on  the  ground  that  a  Senator  is  not  a 
"civil  officer"  of  the  United  States. 

It  appears  that  all  "civil  officers"  may  be  im 
peached  for  "  high  crimes  and  misdemeanors,"  and,  if 
convicted,  they  shall  be  removed  from  office,  and  may 
be  disqualified  for  any  office  under  the  government.  It 
does  not  appear  that  they  may  not  be  impeached  for 
other  and  lesser  offenses,  and  punished  in  the  same 
manner,  or  otherwise,  not  exceeding  that.  Military 
and  naval  officers,  and  even  persons  not  in  office  may 
be  impeached;  at  least  the  Constitution  does  not  for 
bid  it. 

"It  was  the  opinion  of  the  framers  and  early  admin 
istrators  of  our  government,  that  all  the  civil  officers 
were  impeachable  for  minor  malfeasances  in  office,  not 
amounting  to  high  crimes  or  misdemeanors  at  law, 
and  punishable  in  any  manner  not  exceeding  removal 
from,  and  disqualification  for,  office."1  Mr.  Madison's 
language  in  regard  to  removal  from  office  has  already 
been  quoted :  "  The  wanton  removal  of  meritorious  of 
ficers  would  subject  him  (the  President)  to  impeach 
ment  and  removal  from  his  high  trust." 

Besides  the  case  of  Senator  Blount,  there  have  been 
six  instances  of  impeachment.  The  first  was  that  of 
Judge  John  Pickering,  of  the  District  Court  of  New 
Hampshire,  in  March,  1803.  The  second  was  that  of 
Judge  Samuel  Chase,  of  the  Supreme  Court,  in  March, 
1804.  James  H.  Peck,  District  Judge  of  Missouri,  was 
impeached  in  April,  1830;  West  H.  Humphries,  District 
Judge  of  Tennessee,  in  May,  1862;  Andrew  Johnson, 
President  of  the  United  States,  in  February,  1868;  and 
William  W.  Belknap,  Secretary  of  War,  in  March,  1876. 

The  charge -against  Senator  Blount  was  an  attempt  to 
carry  into  effect  a  hostile  expedition  in  favor  of  the  Eng- 

xFarrar,  p.  436. 
C.  G.  17. 


194  THE  CONSTITUTION.  2.  IV. 

lish  against  the  Spanish  possessions  in  Florida  and  Lou 
isiana,  and  to  enlist  some  of  the  Indian  tribes  in  the 
same. 

Judge  Pickering  was  charged  with  great  irregularities 
on  the  bench,  as  well  as  gross  intemperance.  He  was 
undoubtedly  insane  at  the  time  he  was  impeached,  and 
did  not  appear  in  person  or  by  counsel.  The  decision,  on 
March  12th,  1804,  was  that  he  was  guilty  of  the  charges, 
by  vote  of  nineteen  to  seven.  By  a  vote  of  twenty  to  six 
he  was  removed  from  office. 

Judge  Chase  was  charged  with  improper  conduct  on 
the  bench,  as  manifesting  partiality,  injustice,  and  op 
pression.  There  were  eight  articles  of  impeachment,  on 
two  of  which  eighteen  Senators  voted  "  guilty,"  and  sixteen 
"  not  guilty ;"  on  the  other  six  articles  a  majority  voted 
"  not  guilty."  He  was,  therefore,  acquitted  on  every 
article.  John  Randolph  was  the  leading  Manager  on  the 
part  of  the  House  to  conduct  the  case. 

Judge  Peck  was  impeached  for  an  abuse  of  his  judicial 
power  in  punishing  Mr.  L.  E.  Lawless,  an  attorney,  for 
contempt.  The  offense  of  Mr.  L.  was  the  publishing  in 
a  newspaper  a  criticism  on  a  decision  by  Judge  Peck, 
and  he  was  punished  by  imprisonment  for  twenty-four 
hours,  and  suspension  from  the  bar  for  eighteen  months. 
The  cbcision  was  in  favor  of  Judge  Peck,  twenty-one 
Senators  voting  "  guilty,"  and  twenty-two  "  not  guilty." 
Mr.  James  Buchanan  was  the  Chairman  of  the  Managers. 

Judge  Humphries  was  impeached  for  aiding  the  rebel 
lion,  for  acting  as  Judge  of  a  Confederate  Court,  for  ill- 
treating  loyal  men,  confiscating  their  property,  etc.  He 
did  not  appear  in  person  or  by  counsel.  The  Senate 
pronounced  him  "guilty"  on  each  of  the  seven  articles, 
and  by  a  unanimous  vote  he  was  removed  from  office, 
and  disqualified  from  holding  any  office  of  honor,  trust, 
or  profit,  under  the  United  States.  Mr.  John  A.  Bingham 
was  the  Chairman  of  the  Managers. 

President  Johnson  was  impeached  for  removing  Secrc- 


3.  I.  THE   JUDICIARY.  195 

tary  Stanton  from  office  in  alleged  violation  of  the  act 
regulating  the  terms  of  certain  civil  offices,  passed  March 
2d,  1867,  and  for  affirming  that  the  Thirty-ninth  Con 
gress  was  no  Congress,  etc..  etc.  The  President  had  sus 
pended  the  Secretary  in  August,  1867,  but  the  Senate 
voted  in  January,  1868,  not  to  concur  in  the  suspension. 
In  February  the  Secretary,  who  had  resumed  his  office, 
was  removed  by  the  President.  Three  days  afterwards 
the  House  of  Representatives  passed  resolutions  of  im 
peachment.  The  articles  were  read  to  the  Senate  March 
4th,  and  the  trial  ended  May  26th.  Thirty-five  Sena 
tors  voted  "guilty,"  and  nineteen  "  not  guilty."  Mr. 
John  A.  Bingham  was  the  chief  manager. 

Secretary  Belknap  was  impeached  for  "high  crimes 
and  misdemeanors  in  office"  in  receiving  money  for  an 
appointment  to  the  post  of  trader  at  Fort  Bill.  The 
resolution  of  impeachment  was  adopted  March  3d,  but 
the  trial  did  not  end  till  August  1st.  The  question  of 
jurisdiction  was  raised,  as  the  Secretary  had  resigned 
before  the  House  took  action,  but  the  Senate  decided, 
thirty-seven  to  twenty-nine,  that  they  had  jurisdiction. 
The  trial  resulted  in  an  acquittal,  thirty-seven  voting 
"guilty,"  and  twenty-five  "not  guilty."  The  votes 
were  nearly  the  same  as  to  the  guilt  of  the  defendant 
and  as  to  the  jurisdiction  of  the  Senate.  Mr.  Scott 
Lord  was  the  chief  manager. 

ARTICLE    III. 
THE  JUDICIARY. 

Section  1. —  The  judicial  power  of  the  United  States 
shall  be  vested  in  one  Supreme  Court,  and  in  such  inferior 
Courts  os  the  Congress  may  from  time  to  time  ordain  and 
establish.  The  Judges,  both  of  the  Supreme  and  inferior 
Courts,  shall  hold  their  offices  during  good  behavior,  and 
shall,  at  stated  times,  receive  for  their  services  a  compensa- 


196  THE  CONSTITUTION.  3.  I. 

tion  which  shall  not  be  diminished  during  their  contin 
uance  in  office. 

The  Judiciary  is  the  third  of  the  three  great  depart 
ments  of  the  general  government.  The  Constitution 
itself  provides  for  one  Supreme  Court,  but  leaves  to  Con 
gress  to  determine  how  many  inferior  Courts  should  be 
established.  The  organization  of  the  Supreme  Court  is 
also  left  to  Congress. 

At  the  first  session  of  Congress,  in  1789,  an  act  to  or 
ganize  the  Judiciary  was  passed.  Two  inferior  Courts 
were  established,  called  the  Circuit  Court  and  the  Dis 
trict  Court.  While  there  were  thus  three  distinct  Courts, 
there  were  but  two  kinds  of  Judges — Supreme  and  Dis 
trict.  The  country  was  divided  into  thirteen  districts, 
in  each  of  which  a  Judge  was  to  be  appointed,  who  was 
to  hold  a  Court  four  times  in  each  year.  These  districts 
were  grouped  into  three  circuits,  in  each  of  which  a 
Circuit  Court  was  to  be  held  twice  a  year,  to  be  attended 
by  two  Supreme  Judges  and  the  District  Judge.1  The 
Supreme  Court  consisted  of  a  Chief  Justice  and  five  Asso 
ciate  Justices.  This  Court  was  to  hold  two  sessions  each 
year  at  the  seat  of  government. 

As  the  population  of  the  country  increased,  and  new 
States  were  admitted  into  the  Union,  the  number  of 
inferior  Courts  was  increased,  till,  in  1863,  there  were  ten 
Circuits  and  about  forty  Districts.  By  the  act  of  March 
3d,  1863,  the  Supreme  Court  was  composed  of  a  Chief 
Justice  and  nine  Associate  Justices,  the  whole  equal  to 
the  number  of  Circuits.  But  the  act  of  July  23d,  1866, 
provided  that  no  vacancy  should  be  filled  till  the  num 
ber  of  Associate  Justices  was  reduced  to  six. 

From  1793  till  1869  the  Circuit  Court  was  composed 
of  one  Judge  of  the  Supreme  Court  (instead  of  two,  as 


1  In  February,  1801,  an  act  was  passed  providing  for  the  appoint 
ment  of  sixteen  Circuit  Judges,  but  the  act  was  in  force  but  a  single 
year,  having  been  repealed  in  March,  1802. 


3.  I.  THE  JUDICIARY— TERM  OF  OFFICE.  197 

at  first)  and  the  District  Judge.  In  1869  an  act  of  Con 
gress  was  passed  creating  Circuit  Judges,  one  for  each 
of  the  nine  Circuits.  The  same  act  made  the  Supreme 
Court  to  consist  of  a  Chief  Justice  and  eight  Associate 
Justices,  corresponding  to  the  number  of  Circuits. 

We  have  seen  that  in  both  the  legislative  and  the 
executive  departments  the  term  of  office  is  limited:  the 
Representatives  being  elected  for  two  years,  the  Senators 
for  six,  and  the  President  for  four.  But  in  the  judicial 
department  the  office  is  to  be  held  during  good  hchavior. 
This  is  virtually  for  life;  for  a  Judge  of  the  United 
States  can  be  removed  from  office  only  by  impeachment. 
As  the  Judges  are  not  elected  by  the  people,  but  appointed 
by  the  President  and  Senate,  they  would  be  virtually 
dependent  on  the  other  departments  of  the  government 
unless  their  term  of  office  was  during  good  behavior.  If 
the  President,  or  the  President  and  Senate,  could  remove 
them  at  pleasure,  or  if  they  were  appointed  for  a  limited 
term,  the  Judges  could  not  be  truly  independent.  It  was 
the  purpose  of  the  Constitution  to  make  this  department 
co-ordinato  with  the  others,  and  with  no  more  depend 
ence  upon  them  than  they  should  have  upon  it.  The 
independence  of  the  Judiciary  is  quite  as  important  in  a 
republic  as  in  a  monarchy. 

All  the  plans  submitted  to  the  Convention  contained 
this  provision,  that  the  Judges  should  hold  their  offices 
during  good  behavior.  While  Messrs.  Randolph,  Pinck- 
ney,  Patterson,  and  Hamilton  differed  as  to  many  other 
things  they  agreed  entirely  as  to  the  term  of  office  of 
the  Judges.  The  practical  working  of  the  system  has 
been  such  as  to  commend  it  to  the  people.  The  Judges, 
made  thus  independent  of  the  other  departments  of  the 
government,  and  removed  from  the  fluctuations  of  popu- 
•lar  opinion,  have  discharged  the  duties  of  their  high 
trust  with  firmness  and  dignity.  In  some  instances 
men  have  been  appointed  to  the  bench  who  had  previ 
ously  been  intense  political  partisans;  but  with  scarcely 


198  THE  CONSTITUTION.  3.  I. 

an  exception  they  have  laid  aside  party  feeling  when 
entering  upon  office,  and  as  Judges  have  devoted  them 
selves  faithfully  and  conscientiously  to  their  appropri 
ate  duties  of  interpreting  and  applying  the  laws  and 
the  Constitution. 

In  1855  a  Court  of  Claims  was  established,  which  has 
jurisdiction  of  claims  against  the  government  founded 
upon  a  law  of  Congress,  on  any  regulation  of  an  execu 
tive  department,  or  any  contract,  express  or  implied, 
with  the  government  of  the  United  States.  Before  the 
organization  of  this  Court,  those  who  had  claims  against 
the  government  which  were  not  allowed  by  the  depart 
ments  had  no  remedy  but  to  petition  Congress.  This 
devolved  a  great  deal  of  labor  upon  the  members 
of  Congress,  while  it  was  still  difficult  to  adjust  the 
claims. 

This  Court  consists  of  five  Judges,  of  whom  one  is 
Chief  Justice,  who  hold  their  offices  during  good  be 
havior.  Their  annual  session  commences  at  the  same 
time  with  that  of  the  Supreme  Court,  on  the  first 
Monday  of  December. 

There  is  also  a  Supreme  Court  of  the  District  of 
Columbia,  consisting  of  a  Chief  Justice  and  four  As 
sociates,  who  hold  their  offices  during  good  behavior. 
Any  one  of  these  Justices  may  hold  a  District  Court 
for  the  District  of  Columbia,  with  the  same  powers 
and  jurisdiction  as  are  exercised  by  the  other  District 
Courts  of  the  United  States. 

Supreme  and  District  Courts  are  established  in  the 
Territories,  but  they  are  not  considered  as  an  integral 
part  of  the  Judiciary  of  the  United  States.  They  are 
established  by  Congress  in  virtue  of  the  general  sover 
eignty  which  exists  in  the  general  government  over 
the  Territories.  The  Judges  are  usually  appointed  for 
four  years,  unless  sooner  removed. 

The  general  Judicial  system  of  the  United  States 
consists,  then,  of  three  grades  of  Courts — the  Supreme, 


8.  I.  THE   JUDICIARY— COMPENSATION.  199 

the  Circuit,  and  the  District.  There  are  also  three 
grades  of  Judges,  corresponding  to  the  Courts.  The 
Supreme  Court  is  held  by  the  Supreme  Judges,  and 
the  District  Court  by  the  Judge  for  the  District.  But 
the  Circuit  Court  may  be  held  by  a  Supreme  Judge,  the 
Circuit  Judge,  or  the  District  Judge,  or  by  any  two  of 
them.  The  Court  for  the  District  of  Columbia  is  special 
for  that  locality,  and  the  Court  of  Claims  is  special  in 
regard  to  the  cases  brought  before  it. 

The  compensation  of  the  Judges  of  the  United  States 
Courts  shall  not  be  diminished  during  their  continu 
ance  in  office.  The  propriety  of  this  provision  is  obvi 
ous.  If  Congress  could  reduce  their  salaries  at  pleasure 
it  would  place  them  at  the  mercy  of  the  legislative  de 
partment,  and  thus  destroy  their  independence. 

When  the  Courts  were  organized  in  1789,  the  salary 
of  the  Chief  Justice  of  the  Supreme  Court  was  placed  at 
$4000,  and  those  of  the  Associate  Justices  at  $3500  each. 
The  District  Judges  received  from  $1000  to  $1800.  The 
salaries  have  been  raised  from  time  to  time;  since 
March,  1873,  they  have  been  as  follows :  the  Chief 
Justice,  $10,500;  the  Associates,  $10,000;  the  Circuit 
Judges,  $6000,  and  the  District  Judges  from  $C500  to 
$5000. 

By  act  of  April  10th,  1869,  it  was  provided  that  any 
Judge  of  any  Court  of  the  United  States,  having  held  his 
commission  ten  years,  and  having  attained  the  age  of 
seventy  years,  might  resign  his  office  and  receive  the 
same  salary  during  life  which  was  payable  to  him  at 
the  time  of  his  resignation.1 

The  officers  of  the  United  States  Courts  are  Attorneys, 
Marshals,  Reporters,  and  Clerks.  The  Attorney-General 
is  charged  with  the  duty  of  conducting  suits  in  the 
Supreme  Court  in  which  the  United  States,  shall  be 


1  Judges  Robert  C.  Grier  and  Samuel  Nelson  of  the  Supreme  Court 
have  resigned  under  this  provision. 


200  THE  CONSTITUTION.  3.  II.  1. 

concerned.  He  is  also  to  give  his  advice  and  opinion 
upon  questions  of  law  when  required  by  the  President, 
or  requested  by  the  heads  of  any  of  the  departments 
touching  any  matters  that  may  concern  their  depart 
ments.  He  has  a  seat  in  the  Cabinet,  and  is  at  the 
head  of  the  Department  of  Justice  established  in  1870. 

The  Supreme  Court  has  a  Reporter,  whose  duty  it  is 
to  report  all  the  cases  brought  before  that  Court.  These 
reports  are  published,  and  now  fill  many  volumes.1  In 
each  judicial  district  there  is  a  District  Attorney,  who 
attends  to  all  cases  in  the  District  and  Circuit  Courts 
in  which  the  United  States  is  a  party.  Each  district 
has  also  a  Marshal,  who  is  the  executive  officer  of  the 
Court,  performing  the  same  general  duties  in  the 
United  States  Courts  as  the  Sheriff  in  the  State  Courts. 
He  carries  out  the  order  or  judgment  of  the  Court,  and 
executes  its  process.  The  Clerk  keeps  a  record  of  all 
the  proceedings,  giving  a  history  of  each  case,  with  all 
the  orders,  decrees,  judgments,  etc.,  of  the  Court.  He 
keeps  the  seal  of  the  Court,  and  has  charge  of  any 
moneys  paid.  The  Attorney,  Marshal,  and  Clerk  of  the 
District  Court  are  also  officers  of  the  Circuit  Court.  The 
Attorney  and  Marshal  are  appointed  by  the  President 
and  Senate,  but  each  Court  appoints  its  own  Clerk. 

Sec.  2,  Clause  1.  —  The  judicial  power  shall  extend  to 
all  cases  in  law  and  equity  arising  under  this  Constitution, 
the  laws  of  the  United  States,  and  treaties  made,  or  which 
shall  be  made,  under  their  authority;  to  all  cases  affecting 
ambassadors,  other  public  ministers,  and  consuls;  to  all 


1  The  Keporters  have  been  as  follows: 

Alexander  J.  Dallas,  1789  to  1800.  Benj.  C.  Howard,  1843  to  1860. 
William  Cranch,  1801  to  1815.  Jeremiah  S.  Black,  1861  to  1862. 
Henry  Wheaton,  1816  to  1827.  John  W.  Wallace,  1863  to  1875. 
Richard  Peters,  Jr.,  1828  to  1842.  WTm.  T.  Otto,  1875  to . 

A  reference  to   5  Wheaton,  317.  means  the  5th  Vol.,  317th  page 
of  Wheaton's  Reports. 


3.  II.  1.  THE  JUDICIARY— CASES.  201 

cases  of  admiralty  and  maritime  jurisdiction ;  to  contro 
versies  to  which  the  United  States  shall  be  a  party;  to 
controversies  between  two  or  more  States;  between  a  State 
and  citizens  of  another  State  ;  between  citizens  of  different 
States;  between  citizens  of  the  same  State,  claiming  lands 
under  grants  of  different  States  ;  and  between  a  State,  or 
the  citizens  thereof,  and  foreign  States,  citizens,  or  subjects. 

The  judicial  power  extends  to  all  cases,  etc.  The  Court 
has  no  power  to  act  except  when  cases  are  brought  before 
it.  "All  cases  in  law  and  equity  are  all  suits,  civil  and 
criminal,  involving  controverted  rights  between  party 
and  party,  and  instituted  in  legal  form  of  judicial  pro 
ceedings.''  *  Until  a  case  has  been  regularly  brought  before 
the  Court  the  Judges  have  no  power  in  regard  to  it.  It 
is  not  their  province  to  give  information  to  Congress  that 
a  proposed  law  is  unconstitutional,  nor  does  it  belong  to 
them  to  advise  the  President  that  a  law  already  enacted 
is  in  conflict  with  the  Constitution.  Their  power  is 
judicial  merely.  When  a  suit  is  commenced,  and  the 
case  is  before  them,  it  is  their  duty  to  interpret  the  law 
involved,  and  to  give  the  meaning  of  any  part  of  the 
Constitution  which  may  have  a  bearing  upon  the  matter 
at  issue.  But  the  Court  can  not  go  beyond  the  case  which 
is  before  them  and  give  their  views  as  to  points  not  in 
volved.  The  Judges  do  not  make  the  law;  they  interpret 
and  apply  it ;  and  this  only  as  cases  are  regularly  brought 
before  the  Court. 

The  judicial  power  extends  to  cases  in  equity.  "  There 
is  hardly  a  subject  of  litigation  between  individuals 
which  may  not  involve  those  ingredients  of  fraud,  acci 
dent,  trust,  or  hardship,  which  would  render  the  matter 
an  object  of  equitable  rather  than  of  legal  jurisdiction, 
as  the  distinction  is  known  and  established  in  several 
of  the  States.  It  is  the  peculiar  province,  for  instance, 


1  Farrar,  p.  458. 


202  THE   CONSTITUTION.  3.  II.  1. 

of  a  Court  of  Equity  to  relieve  against  what  are  called 
hard  bargains.  These  are  contracts  in  which,  though 
there  may  have  been  no  direct  fraud  or  deceit,  sufficient 
to  invalidate  them  in  a  court  of  law,  yet  there  may  have 
been  some  undue  and  unconscionable  advantage  taken  of 
the  necessities  or  misfortunes  of  one  of  the  parties,  which 
a  Court  of  Equity  would  not  tolerate.  In  such  cases, 
where  foreigners  were  concerned  on  either  side,  it  would 
be  impossible  for  the  federal  judicatories  to  do  justice 
without  an  equitable  as  well  as  a  legal  jurisdiction."1 
In  some  of  the  States  there  are  separate  Courts  for  cases 
of  equity,  called  Courts  of  Equity  or  Courts  of  Chancery. 
In  other  States,  the  same  Court  has  jurisdiction  both  in 
law  and  equity ;  this  is  the  case,  as  we  have  seen,  in  the 
United  States  Courts. 

The  power  extends  to  cases  arising  under  the  Constitu 
tion,  the  laws  of  the  United  States,  and  treaties  made  under 
their  authority.  The  Constitution  confers  certain  powers, 
grants  certain  privileges,  and  secures  to  the  citizen  cer 
tain  rights.  If  a  citizen  should  be  injured  in  regard  to 
any  of  these,  he  could  seek  redress  in  a  United  States 
Court.  If  a  law  of  the  United  States  is  violated,  the 
offender  mu^t  be  tried  before  a  National,  not  before  a 
State  Court.  Robbery  of  the  mail,  evasion  of  the  revenue 
laws,  counterfeiting  the  coin  of  the  country,  would  be 
instances  of  this.  Any  disregard  of  the  stipulations  of 
a  treaty,  whether  by  an  individual,  a  corporation,  or  a 
State,  would  lead  to  a  case  arising  under  the  treaties 
made  by  the  authority  of  the  United  States,  which  must 
be  tried  before  a  National  Court. 

The  propriety  of  referring  to  the  Courts  of  the  United 
States  the  various  cases  enumerated  in  this  clause  can 
not  be  questioned.  "The  judicial  power,"  says  Chief 
Justice  Jay,  "  extends  to  all  cases  affecting  ambassadors, 
other  public  ministers,  and  consuls;  because,  as  these 


1  Federalist,  No.  80. 


3.  II.  1.  THE  JUDICIARY— JURISDICTION.  203 

officers  are  of  foreign  nations,  whom  this  nation  is  bound 
to  protect,  and  treat  according  to  the  laws  of  nations, 
cases  affecting  them  ought  to  be  cognizable  only  by  na 
tional  authority  : 

To  all  cases  of  admiralty  and  maritime  jurisdiction ; 
because,  as  the  seas  are  the  joint  property  of  nations, 
whose  rights  and  privileges  relative  thereto  are  regulated 
by  the  laws  of  nations  and  treaties,  such  cases  necessarily 
belong  to  national  jurisdiction: 

To  controversies  to  which  the  United  States  shall 
be  a  party ;  because,  in  cases  in  which  the  whole  people 
are  interested,  it  would  not  be  equal  or  wise  to  l?t  any 
one  State  decide  and  measure  out  the  justice  due  to 
others : 

To  controversies  between  two  or  more  States ;  because 
domestic  tranquillity  requires  that  the  contentions  of 
States  should  be  peacefully  terminated  by  a  common 
judicatory,  and  because,  in  a  free  country,  justice  ought 
not  to  depend  on  the  will  of  either  of  the  litigants : 

To  controversies  between  a  State  and  citizens  of 
another  State ;  because,  in  case  a  State — that  is,  all  the 
citizens  of  it — has  demands  against  some  citizens  of 
another  State,  it  is  better  that  she  should  prosecute  their 
demands  in  a  National  Court  than  in  a  Court  of  the 
State  to  which  those  citizens  belong,  the  danger  of  irri 
tation  and  criminations  arising  from  apprehensions  and 
suspicions  of  partiality  being  thereby  obviated : 

To  controversies  between  citizens  of  the  same  State 
claiming  lands  under  grants  of  different  States;  because, 
as  the  rights  of  the  two  States  to  grant  the  land  arc 
drawn  into  question,  neither  of  the  two  States  ought  to 
decide  the  controversy: 

To  controversies  between  a  State,  or  the  citizens 
thereof,  and  foreign  States,  citizens,  or  subjects;  be 
cause,  as  every  nation  is  responsible  for  the  conduct 
of  its  citizens,  toward  other  nations,  all  questions 
touching  the  justice  due  to  foreign  nations  or  people 


204  THE   CONSTITUTION.  3,  II.  1. 

ought  to  be  ascertained  by  and  depend  on  national 
authority."  l 

The  judicial  power  of  the  United  States  is  thus  made 
to  extend  to  all  cases  involving  national  questions.  The 
Supreme  Court  is  to  construe  the  laws  and  Constitution 
of  the  United  States.  The  crowning  defect  of  the  old 
Confederation  was  that  there  was  no  national  judiciary. 
The  United  States  had  treaties  with  other  nations,  whose 
import,  like  that  of  other  laws,  must  be  ascertained  by 
judicial  determinations.  "To  produce  uniformity  in 
these  determinations,  they  ought  to  be  submitted  in  the 
last  resort  to  one  Supreme  tribunal.  And  this  tribunal 
ought  to  be  instituted  under  the  same  authority  which 
forms  the  treaties  themselves.  If  there  is  in  each  State  a 
court  of  final  jurisdiction,  there  may  be  as  many  different 
final  determinations  on  the  same  point  as  there  are  courts. 
To  avoid  the  confusion  which  would  unavoidably  result 
from  the  contradictory  decisions  of  a  number  of  inde 
pendent  judicatories,  all  nations  have  found  it  necessary 
to  establish  one  tribunal  paramount  to  the  rest,  possess 
ing  a  general  superintendence,  and  authorized  to  settle 
and  declare  in  the  last  resort  a  uniform  rule  of  civil 
justice." 2  "  Thirteen  independent  courts  of  final  juris 
diction  over  the  same  causes  arising  upon  the  same  laws, 
is  a  hydra  in  government,  from  which  nothing  but  con 
tradiction  and  confusion  can  proceed."3 

The  good  results  anticipated  from  the  judicial  sys 
tem  of  the  United  States  have  been,  to  a  large  extent, 
realized.  "The  act  of  September,  1789,  providing  for 
the  organization  of  the  courts,  has  stood  the  test  of 
experience  since  that  time  with  very  little  alteration 
or  improvement ;  and  this  fact  is  no  small  evidence  of 
the  wisdom  of  the  plan,  and  of  its  adaptation  to  the 
interest  and  convenience  of  the  country.  The  act  was 
the  work  of  much  profound  reflection  and  of  great 


2  Dallas,  419,  475.        2  Federalist,  No.  22.        3  Ibid,  No.  80. 


3.  II.  1.  THE  JUDICIARY— JURISDICTION.  2G5 

legal  knowledge;  and  the  system  then  formed  and  re 
duced  to  practice  has  been  so  successful  and  so  benefi 
cial  in  its  operation  that  the  administration  of  justice 
in  the  federal  courts  has  been  constantly  rising  in  in 
fluence  and  reputation."  l  The  Chairman  of  the  Com 
mittee  that  reported  the  bill  was  Oliver  Ellsworth,  of 
Connecticut,  who  subsequently  held  the  office  of  Chief 
Justice  of  the  Supreme  Court. 

The  Constitution,  as  it  originally  stood,  allowed  suits 
to  be  brought  against  a  State  by  citizens  of  another 
State,  or  by  citizens  or  subjects  of  a  foreign  State. 
This  caused  dissatisfaction  on  the  part  of  the  States, 
as  they  were  unwilling  to  be  arraigned  before  the 
United  States  Courts  on  suits  brought  by  private  per 
sons.  For  this  reason  an  Amendment  to  the  Constitu 
tion  was  proposed  by  Congress  March  5th,  1794: 

TJie  judicial  power  of  the  United  States  shall  not  be 
construed  to  extend  to  any  suit  in  law  or  equity,  commenced 
or  prosecuted  against  one  of  the  United  States  by  citizens 
of  anotJier  State,  or  by  citizens  or  subjects  of  any  foreign 

State. 

This  was  ratified  by  the  legislatures  of  three-fourths 
of  the  States,  and  became  a  part  of  the  Constitution, 
as  announced  by  the  President,  January  8th,  1798.  It 
is  the  Eleventh  Amendment.  While  it  relieves  so  far 
the  dignity  of  the  States,  it  weakens  the  power  of  the 
national  judiciary  to  do  justice  to  the  citizen,  which  is 
one  of  the  ends  for  which  the  Constitution  was  formed. 

The  word  State,  in  this  clause  (1)  is  interpreted  by  the 
Courts  as  not  including  the  Territories  or  the  District 
of  Columbia.  Hence,  a  citizen  of  one  of  the  Territories 
or  of  the  District  of  Columbia  can  not  bring  a  suit  in 
a  United  States  Court.  The  National  Courts,  which  are 
open  to  the  citizens  of  every  State,  and  even  to  aliens. 


1  Kent  I,  p.  305. 


206  THE  CONSTITUTION.  3.  II.  2, 

are  closed  against  a  portion  of  the  citizens  of  the  United 
States. 

No  direct  suit  can  be  brought  against  the  United 
States  either  by  a  citizen  or  a  State,  without  the  au 
thority  of  an  act  of  Congress.1  But  claims  against  the 
government  may  be  brought  before  the  Court  of  Claims. 

Nor  are  the  officers  of  the  general  government  liable 
to  be  sued  for  acts  performed  in  the  regular  discharge 
of  their  official  duties.  "  The  suability  of  the  officers 
for  acts  in  the  regular  routine  of  their  duties,  and  their 
liability  to  appear  in  courts,  and  plead  such  process,  or 
answer  for  it  in  their  own  persons  or  property,  would 
not  only  stop  the  wheels  of  government,  but  break  the 
whole  machine  to  pieces,  and  put  an  end  to  that  po 
litical  ideal  being— the  United  States."2 

Clause  2. — In  fill  canes  affecting  ambassadors,  other 
public  ministers,  and  consuls,  and  those  in  which  a  State 
shall  be  a  party,  the  Supreme  Court  shall  have  original 
jurisdiction.  In  all  the  other  cases  before  mentioned,  the 
Supreme  Court  shall  have  appellate  jurisdiction,  both  as  to 
law  and  fact,  with  such  exceptions  and  under  such  regula 
tions  as  the  Congress  shall  make. 

Jurisdiction  is  the  power  to  hear  and  determine  a 
cause.  Original  jurisdiction  is  the  right  to  hear  and 
determine  a  cause  in  the  first  instance.  If  a  suit  can 
be  commenced  in  the  Circuit  Court,  for  instance,  then 
that  Court  has  original  jurisdiction  in  the  case.  But 
if  the  case  must  be  commenced  in  the  lower  court,  then 
the  Circuit  Court  has  only  appellate  jurisdiction. 

The  Constitution  vests  the  judicial  power  in  one 
Supreme  Court  and  in  such  inferior  Courts  as  Congress 
may  establish.  One  Supreme  Court  must  be  estab 
lished,  but  Congress  may  exercise  its  discretion  as  to 
the  number  and  character  of  the  inferior  Courts.  So, 


1  6  Wheaton,  411.  2  ( Wirt  )  Opin.  of  Alt-Generals,  I,  p.  457. 


3.  II.  2.  THE  JUDICIARY— JURISDICTION.  207 

also,  the  Constitution  itself  prescribes  the  cases  in 
which  the  Supreme  Court  shall  have  original  jurisdic 
tion,  that  is,  the  cases  which  may  be  commenced  in 
the  Supreme  Court.  All  other  cases  to  which  the  ju 
dicial  power  of  the  United  States  extends  must  be 
commenced  in  inferior  Courts,  and  come  before  the  Su 
preme  Court  only  by  way  of  appeal  or  review. 

"It  has  been  decided  by  the  Court  that  this  original 
jurisdiction  can  neither  be  enlarged  nor  diminished; 
because,  if  enlarged  it  would  detract  from  the  Consti 
tutional  appellate  jurisdiction  ;  and,  if  diminished,  it 
would  so  far  deny  all  jurisdiction  to  the  Supreme 
Court,  which  can  take  appellate  jurisdiction  only  in 
'other  cases.'  It  must  also  be  exclusive;  because,  if  a 
case  of  this  kind  can  originate  in  any  other  Court,  this 
Court,  not  being  able  to  take  appellate  jurisdiction, 
could  have  no  jurisdiction  at  all."  l 

The  language  of  this  clause,  as  to  the  appellate  poAver 
of  the  Supreme  Court,  implies  the  establishment  of  the 
inferior  Courts  in  which  the  suits  can  be  commenced. 
As  already  stated,  two  inferior  Courts  have  heen  estab 
lished  :  the  Circuit  Court  and  the  District  Court.  The 
act  of  Congress  establishing  them  prescribes  in  what 
cases  the  District  Court  and  in  what  the  Circuit  shall 
have  original  jurisdiction.  Of  some  cases,  the  District 
Courts  were  to  have  exclusive  original  jurisdiction ; 
and  of  others,  this  jurisdiction  was  to  be  concurrent 
with  the  Circuit  Courts  and  the  State  Courts.  So,  also, 
the  cases  are  prescribed  which  may  be  carried  from  the 
District  Court  up  to  the  Circuit,  and  those  which  may 
be  carried  from  the  Circuit  up  to  the  Supreme  Court. 

Unless  Congress  had  made  these  "exceptions  and 
regulations "  the  Supreme  Court  would  have,  by  the 
Constitution,  appellate  jurisdiction  in  all  the  cases 
coming  under  the  cognizance  of  the  National  Courts, 


^arrar,  p.  468. 


208  THE  CONSTITUTION.  3.  II.  2. 

except  those  in  which  the  Constitution  had  given 
them  original  jurisdiction.  Congress  has  "excepted" 
some  cases  out  of  the  appellate  jurisdiction  of  the  Su 
preme  Court,  giving  the  final  disposition  of  them  to 
the  inferior  Courts. 

The  Act  of  Congress  now  referred  to  provides  for  the 
exercise  of  appellate  power  by  the  Supreme  Court  in 
certain  cases  which  have  been  decided  by  the  highest 
State  Courts.  Of  course,  these  cases  involve  the  Consti 
tution,  laws,  or  treaties  of  the  United  States;  otherwise, 
the  decision  of  the  State  Supreme  Court  would  be  final. 

Two  views  are  held  as  to  the  appellate  jurisdiction  of 
the  Courts.  The  language  of  the  Constitution  is,  "In 
all  the  other  cases  before  mentioned  the  Supreme  Court 
shall  have  appellate  jurisdiction  both  as  to  law  and  fact, 
with  such  regulations  and  exceptions  as  Congress  shall 
make."  Some  maintain  that  the  expression,  "  with  such 
exceptions  and  regulations  as  Congress  shall  make," 
gives  Congress  the  control  of  the  whole  matter.  They 
hold  that  the  Courts  can  exercise  appellate  jurisdiction 
in  those  cases  only  which  Congress  has  provided  for. 
If  Congress  had  not  provided  any  rule  to  regulate  the 
proceedings  on  appeal,  the  Court  could  not  exercise 
any  appellate  jurisdiction.  This  theory  is,  that  all  the 
judicial  power  of  the  nation,  except  in  cases  affecting 
ambassadors,  etc.,  or  those  in  which  a  State  is  a  party, 
is  placed  at  the  disposal  of  Congress,  who  may  give  it 
out  at  their  discretion. 

Others  hold  that  the  Constitution  itself  vests  the  ju 
dicial  power  of  the  nation  in  the  Supreme  Court,  and 
such  inferior  Courts  as  Congress  may  establish.  The 
language  of  the  Constitution  is  the  same  for  the  three 
departments  of  the  government.  As  it  says  the  Legis 
lative  power  "shall  be  vested"  in  Congress,  and  the 
Executive  power  in  the  President,  so  the  Judicial  power 
"shall  be  vested"  in  the  Courts.  By  the  Constitution 
Congress  mav  make  the  necessarv  laws,  the  President 


3.  II.  2.        THE   JUDICIARY- APPELLATE  POWER.  209 

may  execute  them,  and  the  Courts  may  interpret  and 
apply  them.  As  Congress  is  not  dependent  upon  the 
President  for  authority  to  legislate,  neither  are  the 
Courts  dependent  on  Congress  for  authority  to  exercise 
their  judicial  functions.  According  to  this  view  the 
whole  judicial  power  belongs  to  the  Courts.  "  Congress 
may  remove  or  ' except'  some  cases  out  of  the  appellate 
jurisdiction  of  the  Supreme  Court  by  giving  it  to  some 
other  Court  of  the  United  States,  but  not  by  abolishing 
it,  or  leaving  it  to  be  exercised  or  not  by  any  body  else. 
They  may  also  make  *  regulations ; '  that  is,  prescribe 
rules  by  which  the  jurisdiction  shall  be  exercised  so 
as  to  render  it  efficient  and  effectual  for  its  purposes., 
but  in  no  case  to  limit  or  obstruct  it. 

"The  only  power  conferred  on  Congress  by  this  clause 
is  to  make  exceptions  to,  and  regulations  for,  the  ap 
pellate  jurisdiction  of  the  Supreme  Court.  If  they  do 
neither,  that  Court  has  the  whole  appellate  power  by 
the  Constitution.  If  they  make  '  exceptions,'  they  must 
give  cases  excepted  to  some  inferior  Court.  If  they 
make  'regulations,'  the  jurisdiction  must  be  exercised 
according  to  the  rules  so  prescribed;  otherwise,  the 
jurisdiction  must  be  exercised  in  conformity  to  such 
rules  as  the  Court  itself  may  prescribe,  according  to 
law."1  Though  the  former  of  these  views  has  been  the 
one  adopted  in  the  main,  both  by  the  Legislative  and 
Judicial  departments  of  the  government,  the  latter  seems 
to  be  more  in  accordance  with  the  spirit  and  letter  of 
the  Constitution. 

The  Courts  of  the  United  States  have  a  wider  scope 
than  those  of  Great  Britain.  If  a  law  of  Congress  con 
flicts  with  the  Constitution,  the  Supreme  Court  may 
declare  it  null  and  void.  But  the  Courts  of  Great  Brit 
ain  can  only  interpret  and  apply  the  statutes  of  Par 
liament;  they  can  not  declare  them  null.  There  is 


1  Farrar,  p.  471. 
C.  G.  18. 


"210  THE  CONSTITUTION.  3.  II.  2. 

no  question  of  constitutionality  or  unconstitutionally 
touching  an  act  of  the  British  Parliament.  Parliament 
itself  is  supreme  for  law-making  purposes;  it  possesses 
all  the  legislative  power  of  the  British  people.  But 
while  Congress  can  repeal  or  amend  their  own  statutes, 
they  can  not  alter  or  amend  the  Constitution.  The 
Constitution  is  the  work  of  the  people,  and  they  alone 
can  amend  it.  The  legislative  power  of  Parliament, 
therefore,  is  broader  than  that  of  the  Congress  of  the 
United  States,  and,  as  a  consequence,  the  province  of 
the  British  Courts  is  narrower  than  that  of  ours.1 

It  has  been  already  said  that  the  powers  of  the  Courts 
are  judicial,  not  political.  Thus  if  there  were  two  con 
tending  parties,  each  claiming  to  be  the  rightful  govern 
ment,  of  France,  for  instance,  the  question  would  not 
he  left  to  the  Judiciary.  So  if  there  should  be  a  con 
test  between  two  parties  in  a  State,  each  claiming  to 
be  the  legitimate  government,  the  question  would  be 
a  political,  and  not  a  judicial,  one.  Congress  has  de 
cided  that  the  votes  of  certain  States  should  not  be 
counted  in  an  election  for  President;  Congress  has  also 
decided  that,  where  the  legislature  of  a  State  had  voted 
to  ratify  an  amendment  to  the  Constitution,  and  subse 
quently  withdrawn  its  ratification,  the  vote  of  ratifica 
tion  must  be  counted.  The  Supreme  Court  has  it 
self  decided  that  certain  questions  were  political,  and 
therefore  did  not  come  within  its  jurisdiction.  The 
judiciary  can  not  prescribe  a  policy  for  the  govern 
ment  of  the  country.  That  must  be  left  to  the  other 
departments.  The  judicial  department  can  not  restrain 
the  others  in  their  action,  though  the  acts  of  both, 
when  performed,  are,  in  proper  cases,  subject  to  its 
cognizance.2 

There  is  danger  in  times  of  high  political  excitement 
that  one  department  may  encroach  upon  another;  but 


1  Yeaman's  Study  of  Government,  Chap.  vii.       24  Wallace,  500. 


3.  II.  2.  THE   JUDICIARY— DECISIONS.  211 

no  government,  save  an  absolute  despotism,  could  be 
framed  in  \vbich  this  liability  would  not  exist.  We 
have  a  right  to  assume  that  each  department  of  the 
government  will  honestly  and  in  good  faith  confine 
itself  to  the  duties  which  by  the  Constitution  have 
been  assigned  to  it. 

Apprehension  is  sometimes  expressed  lest  the  Su 
preme  Court,  by  deciding  acts  of  Congress  to  be  unconsti 
tutional,  may  obstruct  the  work  of  legislation,  and  block 
the  wheels  of  government.  But  it  must  be  remembered 
that  each  of  the  three  great  departments  of  the  govern 
ment  is  clothed  with  great  power,  and  each  may  do  in 
calculable  mischief,  if  so  disposed;  yet  the  history  of  the 
nation  does  not  show  that  this  power  has  been  so  used 
to  any  considerable  extent.  In  general,  the  National 
Courts  have  been  extremely  cautious  in  regard  to  in 
terference  with  the  laws  of  Congress. 

"  It  is  an  axiom  in  our  jurisprudence,"  says  Judge 
Swayne  (United  States  vs.  Rhodes  and  others),  "that 
an  act  of  Congress  is  not  to  be  pronounced  unconsti 
tutional  unless  the  defect  of  power  to  pass  it  is  so  clear 
as  to  admit  of  no  doubt.  Every  doubt  is  to  be  resolved 
in  favor  of  the  validity  of  the  law.  Since  the  organi 
zation  of  the  Supreme  Court  but  three  acts  of  Congress 
have  been  pronounced  void  for  unconstitutionality." 

The  first  instance  was  in  1801,  at  the  beginning  of 
Mr.  Jefferson's  administration.  Near  the  close  of  the 
administration  of  Mr.  Adams,  a  person  was  appointed 
to  office  and  his  commission  made  out,  but  not  deliv 
ered.  Mr.  Jefferson  withheld  the  commission.  Appli 
cation  was  made  to  the  Supreme  Court  for  a  writ  of 
mandamus,  to  compel  Mr.  Madison,  the  Secretary  of 
State,  to  deliver  it;  the  judiciary  act  of  1789  author 
izing  the  Supreme  Court  to  issue  such  writs.  But  the 
Court,  while  they  held  that  to  withhold  the  commission 
was  an  act  not  warranted  by  law,  and  violative  of  a 
vested  legal  right,  decided  that  clause  of  the  act  of  1789 


212  THE  CONSTITUTION.  3.  II.  2. 

to  be  unconstitutional,  as   it   gave  the   Court  original 
jurisdiction  where  the  Constitution  had  not  given  it.1 

The  second  instance  was  in  the  celebrated  Dred  Scott 
case,  in  Mr.  Buchanan's  administration,  in  1857.  The 
Court  decided  that  the  eighth  section  of  the  act  of  Con 
gress  of  1820,  preparatory  to  the  admission  of  Missouri 
into  the  Union,  commonly  called  the  "  Missouri  Com 
promise,"  was  unconstitutional.  This  section  prohibited 
slavery  in  that  part  of  the  Louisiana  territory  lying 
north  of  thirty-six  degrees  thirty  minutes  north  lati 
tude,  and  not  included  in  the  State  of  Missouri.2  (It  was 
claimed  by  the  minority  of  the  Court  at  the  time,  and  by 
other  Judges  of  the  same  Court  since,  that  this  question 
was  not  bofore  the  Court,  and,  therefore,  that  what  was 
said  in  regard  to  it  was  no  more  binding  than  the  views 
of  the  minority.) 

The  third  case  was  that  of  Garland,  of  Arkansas, 
which  was  tried  in  the  winter  of  1866-7-  Congress 
had  enacted,  (Act  of  July,  1862,  amended  by  that  of 
January,  1865,)  that  all  officers  of  the  United  States, 
including  attorneys  practicing  in  United  States  Courts, 
should  take  a  test  oath.  The  Supreme  Court  decided 
that  this  act  was  unconstitutional  as  to  attorneys  of 
the  Supreme  Court,  who  were  such  before  the  rebellion, 
as  being  a  bill  of  attainder  and  an  ex  post  facto  law.3 

The  last  two  decisions  were  made  in  times  of  high 
political  excitement,  and  were  severely  commented 
upon  by  lawyers ;  the  dissenting  judges  also  gave  their 
reasons  for  believing  the  laws  in  question  to  be  strictly 
constitutional.  Some  other  cases  have  occurred  more 
recently,  but  they  are  comparatively  unimportant. 

The  fact  that,  in  a  period  of  more  than  fourscore  years, 
Congress  enacted  but  three  laws,  which,  in  the  judg 
ment  of  the  Supreme  Court,  contained  any  thing  conflict- 


ll  Cranch,   137,  Marbury   vs.  Madison.     219    Howard,   393,  Scott 
vs.  Sandford.     3  4  Wallace,  334,  Ex  parte  Garland. 


3.  II.  3.          THE  JUDICIARY— TRIAL  OF  CRIMES.  213 

ing  with  the  Constitution,  is  a  proof  of  the  care  and 
caution  of  Congress  on  the  one  hand,  and,  on  the  other, 
of  the  disposition  of  the  Judiciary  to  avoid  all  encroach 
ment  upon  the  Legislative  department  of  the  govern 
ment. 

Clause  3. —  The  trial  of  all  crimes,  except  in  cases  of 
impeachment,  shall  be  by  jury ;  and  such  trial  shall  be 
held  in  the  State  where  the  said  crimes  shall  have  been  com 
mitted;  but  when  not  committed  ivithin  any  State,  the  trial 
shall  be  at  such  place  or  places  as  the  Congress  mny  by 
law  have  directed. 

A  trial  by  jury  is  a  trial  by  twelve  men,  impartially 
selected,  who  must  all  concur  in  the  guilt  of  the  person 
accused  before  he  can  be  convicted.  This  right  of  trial 
by  jury  has  long  been  regarded  as  one  of  the  bulwarks 
of  liberty.  In  the  celebrated  Magna  Charta,  granted  by 
King  John,  at  Runnymede,  June  15th,  1215,  is  the  fol 
lowing  article:  ''No  freeman  shall  betaken,  or  im 
prisoned,  or  disseized,  or  outlawed,  or  banished,  or  any 
ways  injured;  nor  will  we  pass  upon  him,  nor  send  upon 
him,  unless  by  the  legal  judgment  of  his  peers,  or  by 
the  law  of  the  land."  "Nor  will  we  pass  upon  him,  nor 
send  upon  him  "  (nee  super  eum  ibiinus,  nee  super  eum 
mittemus),  is  interpreted  to  mean  that  no  man  should 
be  condemned  (without  trial  by  his  peers)  either  in  the 
Court  of  the  King's  Bench,  where  the  king  is  supposed 
to  be  always  present,  and  to  render  judgment  in  his  own 
person,  or  before  any  judge  whom  the  king  may  dele 
gate  to  try  him.1 

The  word  peers  means  equals,  and  has  reference  to  the 
different  classes  or  orders  of  men  in  a  country  like  Eng 
land.  Another  article  of  Magna  Charta  says :  "  Earls 
and  barons  shall  not  be  amerced  but  by  their  peers."  A 
man  must  be  tried  by  a  jury  composed  of  those  who  are 


1  Bowen's  Constitution  of  England  and  America,  p.  11. 


214  THE  CONSTITUTION.  3.  II.  3. 

of  the  same  rank  or  standing  with  him.  In  the  United 
States,  as  we  have  no  orders  of  nobility,  the  trial  is  by 
a  jury  of  impartial  men. 

Most  of  the  cases  that  come  before  the  Supreme  Court, 
and  many  of  those  before  the  lower  Courts,  are  decided 
by  the  Court;  there  is  no  jury.  But  the  Judiciary  act 
of  1789  provides  that  issues  of  fact,  in  the  District  Courts, 
in  all  causes,  except  civil  causes  of  admiralty  and  mari 
time  jurisdiction,  shall  be  by  jury.  So  in  the  Circuit 
Courts,  with  the  exception  of  equity  suits,  besides  those 
above  named,  the  trial  of  issues  of  fact  shall  be  by  jury. 
But  the  Constitution  requires  that  all  criminal  cases, 
before  any  United  States  Court,  shall  be  by  jury.  Cases 
of  impeachment  are  tried  by  the  Senate,  as  we  have 
seen. 

The  trial  must  take  place  in  the  State  where  the 
crimes  were  committed.  This  is  a  provision  in  favor 
of  the  accused.  He  is  made  to  suffer  as  little  incon 
venience  as  possible.  Offenses  "not  committed  in  any 
State"  are  those  in  the  District  of  Columbia;  in  the 
organized  territories ;  in  the  Indian  country;  in  the  forts 
and  arsenals  of  the  United  States;  and  upon  the  high 
seas.  Provision  is  made  by  law  for  ail  these;  those 
committed  upon  the  high  seas  are  tried  in  the  State 
where  the  vessel  first  arrives.1 

With  us  there  is  no  conviction  unless  the  jury  are 
unanimous.  "The  unanimity  required  in  the  verdicts 
of  English  and  American  juries  was  not  originally  re 
quired  among  the  people  with  whom  the  institution 
had  its  origin;  the  verdict  being  reckoned  by  a  major 
ity,  except  among  the  Normans  after  they  went  to  that 
province  of  France  which  has  since  borne  their  name. 
*  *  In  Sweden  the  jury  exists  to-day  as  it  has  existed 
for  many  centuries.  A  verdict'is  given  by  one-half  the 
jury,  or  any  greater  proportion,  and  the  judge;  or  by  a 


1  Paschal 's  Annotated  Constitution,  p.  211. 


Amend.  5.      THE   JUDICIARY— TRIAL  OF  CRIMES.  215 

unanimous  jury  against  the  opinion  of  the  judge  ;  there 
being  no  verdict  when  the  majority  are  opposed  by  a 
minority  and  the  judge.  *  *  We  could  now  well  con 
sider  whether  absolute  unanimity  may  not  safely  be 
dispensed  with ;  whether  the  jury  is  not  less  a  necessity 
in  a  perfectly  free  community  of  equals  than  in  one 
composed  of  the  three  orders ;  whether  its  functions,  in 
the  progress  of  our  political  growth,  have  not  been  in 
great  part,  or  entirely  performed,  so  that  in  the  future  it 
is  to  be  simply  a  preservative  and  safeguard  instead  of 
a  forming  and  guiding  influence — a  conservative  rather 
than  a  progressive  force;  and  therefore  whether  we  may 
not  well  limit  its  application  to  penal,  criminal,  and 
political  causes  and  actions  arising  in  tort  or  sounding 
in  damages;  leaving  all  matters  of  account,  contract, 
title,  and  estates,  entirely  to  the  Court,  without  the  in 
tervention  of  a  jury.  Such,  at  least,  seems  to  be  the 
tendency  of  the  professional  judgment  of  the  country." J 
We  may  consider  here  some  Amendments  which  re 
late  to  the  subject  of  the  Judiciary. 

Amendment  5. — No  person  shall  be  held  to  answer  for 
a  capital  or  otherwise  infamous  crime,  unless  on  a  present 
ment  or  indictment  of  a  grand  jury,  except  in  cases  arising 
in  the  land  or  naval  forces,  or  in  the  militia  when  in 
actual  service  in  time  of  war  or  public  danger;  nor  shall 
any  person  be  subject  for  the  same  offense  to  be  twice  put 
in  jeopard y  of  life  or  limb  ;  nor  shall  be  compelled  in  any 
criminal  case  to  be  a  witness  against  himself,  nor  be  de 
prived  of  life,  liberty,  or  property,  without  due  process  of 
law;  nor  shall  private  property  be  taken  for  public  use 
without  just  Compensation. 

There  are  two  juries,  the  grand  jury  and  the  petit 
jury  ;  the  latter  being  meant  when  the  word  jury  is 


1  Yeaman,  Chap.  xiii. 


216  THE  CONSTITUTION.  Amend.  5. 

used  without  any  qualifying  term.  The  grand  jury  is 
composed  of  a  number  of  men,  not  less  than  twelve 
nor  more  than  twenty-three,  selected  ns  prescribed  by 
law.  In  the  National  Courts  after  the  grand  jury  has 
been  impaneled,  the  Judge  delivers  his  charge  to 
them,  directing  them  to  make  careful  inquiry  of  all 
offenses  committed  within  the  district  against  the 
laws  of  the  nation,  and  to  make  presentment  of  the 
same. 

A  presentment  is  an  accusation  made  by  the  grand 
jury  from  their  own  observation  or  knowledge,  or 
from  evidence  before  them.  An  indictment  is  a  formal 
accusation  drawn  up  by  the  proper  officer — in  the 
United  States  Courts,  the  district  attorney— charging 
offenses  upon  certain  parties.  It  is  the  duty  of  the 
grand  jury  to  examine  the  grounds  of  this  accusation. 
If  the  evidence  seem  to  them  insufficient  to  warrant  a 
trial  of  the  party  accused,  they  endorse  upon  the  bill 
of  indictment,  "  not  a  true  bill,"  or  "  not  found,"  and 
the  prisoner  is  released.  But  if  they  regard  the  accu 
sation  as  well  founded,  they  endorse  upon  the  indict 
ment  the  words  "  a  true  bill."  In  this  case  they  are 
said  to  find  the  indictment,  and  the  person  accused 
must  be  brought  to  trial.  A  presentment  may  lead  to 
an  indictment,  or  it  may  not.  Sometimes  it  is  a  mode 
taken  by  the  grand  jury  to  call  public  attention  to  cer 
tain  acts  which  are  thought  worthy  of  reprehension. 
Though  the  Constitution  says  no  person  can  be  tried 
unless  on  a  presentment  or  indictment,  no  person  is,  in 
fact,  brought  to  trial  except  on  indictment.  Congress 
has  never  authorized  trials  on  presentment. 

No  person  may  be  subject  to  a  second  trial  for  the 
same  offense.  That  is,  when  by  the  verdict  of  a  jury, 
a  man  has  been  regularly  acquitted  or  convicted  of  the 
offense  charged,  and  judgment  has  been  pronounced, 
he  can  not  be  tried  for  that  offense  a  second  time.  But 
if  the  jury  could  not  agree,  or  were  discharged  before  a 


Amend.  6.  THE  JUDICIARY-TRIALS.  217 

verdict  was  rendered,  or  if  judgment  was  arrested  after 
a  verdict,  or  a  new  trial  granted  in  his  favor,  he  might 
be  tried  again. 

No  person  may  be  compelled  to  testify  against  him 
self,  or  be  deprived  of  life,  liberty,  or  property,  without 
due  process  of  law.  In  former  times  criminals  have 
been  compelled,  and  in  some  countries  are  now,  to  be 
witnesses  against  themselves,  and  even  torture  is  used 
to  wring  from  them  a  confession  of  guilt.  Though  the 
protection  to  the  citizen  specified  in  this  Amendment 
was  among  the  common-law  privileges,  it  is  inserted 
here  for  additional  security. 

Private  property  shall  not  be  taken  for  public  use 
without  just  compensation.  It  is  necessary  for  the 
government  sometimes  to  take  possession  of  private 
property  for  public  purposes.  A  road  is  to  be  made, 
or  a  street  is  to  be  opened,  for  example.  In  some  cases 
the  property  is  purchased  beforehand ;  but  if  a  price 
can  not  be  agreed  on,  or  the  owner  will  not  sell,  the 
property  is  condemned,  and  a  jury  are  summoned  to 
assess  the  damages.  They  may  not  place  as  high  an 
estimate  on  it  as  the  owner  does,  but  this  is  a  liability 
to  which  all  are  subject  alike. 

Amend ment  6. — In  all  criminal  prosecutions  the  'ac 
cused  shall  enjoy  the  right  to  a  speedy  and  public  trial 
by  an  impartial  jury  of  the  State  and  district  wherein 
the  crime  shall  have  been  committed,  which  district  shall 
have  been  previously  ascertained  by  law,  and,  to  be  in 
formed  of  the  nature  and  cause  of  the  accusation  ;  to  be 
confronted  with  the  witnesses  against  him;  to  have  com 
pulsory  process  for  obtaining  ivitnesses  in  hitt  favor;  and 
to  have  the  assistance  of  counsel  for  his  defense. 

All  but  the  last  two  of  these  provisions  were  a  part 
of  the  common  law   of  England.     But,  until  a   period, 
comparatively    recent,    the   accused    was    not,    in    that 
C.  G.  19. 


218  THE  CONSTITUTION.  Amend.  6. 

country,  allowed  in  capital  cases  to  have  the  assistance 
of  counsel,  or  the  right  to  compel  the  attendance  of 
witnesses.  We  can  hardly  credit  the  statement,  that 
before  the  accession  of  William  and  Mary,  in  1688,  a 
person  arraigned  for  a  capital  crime  was  entitled  neither 
to  witnesses  nor  counsel.  Yet  such  was  the  fact. 
(Judge  Story).  It  was  well,  therefore,  to  guard  these 
rights  by  a  provision  in  the  Constitution;  thus  mak 
ing  sure  that  in  all  the  land  an  accused  person  should 
be  entitled  not  only  to  a  trial  by  jury,  but  to  witnesses 
and  counsel  as  well. 

Both  these  Amendments  have  reference  to  the  civil 
administration  of  the  government  in  time  of  peace. 
11  \Vhenever  from  invasion  or  rebellion  the  public  safety 
may  require  the  administration  of  martial  authority, 
criminals  may  be  tried,  convicted,  and  executed,  with 
out  the  intervention  of  a  jury." 1  "  The  conspirators 
who  assassinated  the  President  of  the  United  States 
while  the  country  was  in  a  state  of  war,  and  while  the 
city  of  Washington  was  under  martial  law,  were  tri 
able  by  military  commission  under  the  act  of  Congress, 
and  not  entitled  to  a  trial  by  jury." 2  "  The  Constitution 
contemplates  the  possible  existence  of  war  with  all  its 
stern  realities ;  and  provides  for  an  administration  of 
authority  under  its  provisions  suited  to  such  exigen 
cies.  In  times  of  peace  the  citizen  is  to  be  secure  in 
the  enjoyment  of  his  civil  liberty  and  rights,  according 
to  the  established  forms  and  usages  of  law.  But  the 
Constitution  contemplates  the  possibility  of  a  state  of 
public  danger  arising  from  the  presence  of  a  foreign  or 
domestic  foe.  *  *  It  contemplates  the  necessary  sus 
pension  for  the  time  being,  and  in  particular  localities, 
of  the  civil  functions  of  the  government,  that  the 
martial  powers  of  the  same  may  be  efficiently  exer 
cised,  for  the  security  and  welfare  of  the  nation."3 


,  p.  366.         2  Paschal,  p    264.         a  Tiffany,  p.  259. 


Amend.  7.  THE  JUDICIARY-TRIALS.  219 

Amendment  7.— /n  suits  at  common  law,  where  the 
value  in  controversy  shall  exceed  twenty  dollars,  the  right 
of  trial  by  jury  shall  be  preserved ;  and  no  fact  tried  by 
a  jury  shall  be  otherwise  re-examined  in  any  Court  of 
the  United  States,  than  according  to  the  rules  of  the  com 
mon  law. 

The  phrase  "  common  law  "  is  used  in  contradistinc 
tion  from  equity,  admiralty,  and  maritime  jurisprud 
ence.  It  is  the  common  law  of  England,  the  lex  non 
scripta,  the  immemorial  customs  of  the  country.  Arti 
cle  III.,  Section  2,  Clause  2,  gives  to  the  Supreme 
Court  appellate  jurisdiction  both  as  to  law  and  fact. 
"The  real  object  of  that  provision  was  to  retain  the 
power  of  reviewing  the  fact  as  well  as  the  law,  in 
cases  of  equity,  and  admiralty,  and  maritime  jurispru 
dence."  But  as  it  was  thought  by  some  to  authorize 
the  Supreme  Court  to  review  the  decision  of  a  jury 
in  mere  matters  of  fact,  and  thus  reduce  to  a  form 
the  right  of  trial  by  jury  in  civil  cases,  this  Amend 
ment  was  proposed  to  remove  the  misapprehension. 
The  rules  of  common  law  recognized  but  two  modes 
of  re-examining  facts  tried  by  jury;  first,  the  grant 
ing  a  new  trial  by  the  Court  before  which  the  is 
sue  was  tried;  and,  second,  by  a  writ  of  error.  A 
writ  of  error  removes  nothing  for  re-examination  but 
the  law.  An  appeal  would  remove  the  cause  entirely, 
subjecting  the  fact  as  well  as  the  law  to  a  review  and 
a  retrial.  But  an  appeal  is  a  process  of  civil  law 
origin  and  not  of  common  law. 

Sec.  3,  Clause  1. — Treason  against  the  United  States 
shall  consist  only  in  levying  war  against  them,  or  in  ad 
hering  to  their  enemies,  giving  them  aid  and  comfort.  No 
person  shall  be  convicted  of  treason  unless  on  the  testimony 
of  two  witnesses  to  the  same  overt  act,  or  on  confession  in 
open  Court. 


220  THE  CONSTITUTION.  S.  III.  1. 

Treason  is  the  highest  crime  known  to  society,  be 
cause  it  tends  to  the  destruction  of  the  government 
itself.  A  traitor  is  always  regarded  as  meriting  the 
severest  punishment  that  society  can  inflict.  As  treason 
is  a  breach  of  allegiance,  it  can  be  committed  by  one 
only  against  the  government  to  which  he  owes  alle 
giance.  Most  governments  have  made  the  word  treason 
include  many  offenses  which  were  not  strictly  treason 
able,  and  thus  often  persons  have  been  put  to  death  for 
crimes  for  which  some  milder  punishment  would  have 
been  sufficient.  As  the  word  implies  a  breach  of  faith, 
it  was  petit  treason  for  a  wife  to  kill  her  husband,  or 
for  a  servant  to  kill  his  master.  The  act  was  more  than 
murder ;  it  was  a  kind  of  treason.  For  a  subject  to  at 
tempt  to  take  the  life  of  the  king  or  queen,  or  to  levy 
war  against  the  king,  or  to  adhere  to  his  enemies,  was 
higJi  treason. 

When  a  tyrannical  king  was  on  the  throne,  his  judges 
would  often  declare  offenses  to  be  treason  which  the 
people  never  suspected  to  be  treasonable.  This  was 
called  constructive  treason.  To  prevent  this,  a  statute 
Was  enacted  in  England  in  the  time  of  Edward  III., 
which  denned  the  term.  This  •  statute  comprehended 
the  various  kinds  of  treason  under  seven  heads.  The 
third  of  these  was,  levying  war  against  the  king  in  his 
realms;  and  the  fourth  wa«,  adhering  to  the  king's 
enemies  in  his  realm,  and  giving  them  aid  and  comfort 
in  his  realm  or  elsewhere. 

Our  Constitution  takes  a  part  of  this  statute  of  Edward 
III.  for  its  definition  of  treason.  It  is  made  to  consist 
only  in  levying  war  against  the  nation,  or  in  adhering  to 
its  enemies,  giving  them  aid  and  comfort.  The  purpose 
was  to  make  the  meaning  as  definite  as  possible,  that  all 
opportunity  for  constructive  treason  might  be  removed. 
Mr.  Madison  thought  the  definition  was  too  restricted, 
and  that  more  latitude  ought  to  be  left  to  the  discretion 
of  Congress.  But  the  Convention  preferred  to  place  the 


3.  TIT.  1.  THE  JUDICIARY  — TREASON.  221 

definition  in  the  Constitution  itself,  and  not  to  leave  it 
to  the  judgment  of  Congress. 

It  has  been  decided  by  the  Court  that  there  must  be 
an  actual  levying  of  war;  that  a  conspiracy  to  subvert 
the  government  by  force  is  not  treason.  But  after  war 
has  been  commenced,  men  may  give  aid  and  comfort  to 
the  enemy,  although  they  may  not  actually  bear  arms. 
The  language  of  the  Court  is:  If  war  be  actually  levied, 
that  is,  if  a  body  of  men  be  actually  assembled  for  the 
purpose  of  effecting  by  force  a  treasonable  purpose,  all 
those  who  perform  any  part,  however  minute,  or  how^ 
ever  remote  from  the  scene  of  action,  and  who  are 
actually  leagued  in  the  general  conspiracy,  are  to  be 
considered  traitors. l 

While  the  Constitution  thus  makes  the  offense  of 
treason  to  embrace  the  giving  aid  and  comfort  to  the 
enemies  of  the  country,  opinions  may  differ  in  regard 
to  what  constitutes  "  aid  and  comfort."  During  the  late 
civil  war,  two  steamers  belonging  to  a  steamship  com 
pany  had  been  seized  for  the  rebel  service.  Subse 
quently,  payment  was  offered  for  them  to  the  agent  of 
the  company,  when  he  was  informed  by  the  government 
that  acceptance  of  payment  from  the  rebels  would  be 
treated  as  an  act  of  treason  against  the  United  States. 
Said  Mr.  Seward,  Secretary  of  State:  "It  is  treason  for 
any  person  to  give  aid  and  comfort  to  public  enemies. 
To  sell  vessels  to  them  which  it  is  their  purpose  to  use 
as  ships  of  war,  is  to  give  them  aid  and  comfort.  To 
receive  money  from  them  in  payment  for  vessels  which 
they  have  seized  for  those  purposes,  would  be  to  attempt 
to  convert  the  unlawful  seizure  into  a  sale,  and  would 
subject  the  party  so  offending  to  the  pains  and  penalties 
of  treason,  and  the  government  would  not  hesitate  to 
bring  the  offender  to  punishment."2 

In  times  of  rebellion,  or  civil  war,  all  persons  should 


parte  Bollman,  4  Cranch,  126.         2 Tiffany,  p.  283. 


222  THE   CONSTITUTION.  3.  III.  2. 

exercise  great  caution  in  regard  to  their  conduct  and 
language,  lest  they  subject  themselves  to  the  charge  of 
giving  aid  and  comfort  to  the  enemies  of  their  country. 
Actions  and  words,  which,  in  other  circumstances, 
would  pass  unnoticed,  may  be  productive  of  great  mis 
chief  when  the  life  of  the  nation  is  endangered.  All 
good  citizens  will,  therefore,  at  such  times,  studiously 
refrain  from  whatever  might  bear  an  unfavorable  con 
struction. 

Conviction  of  treason  requires  the  testimony  of  two 
witnesses  to  the  same  overt  act  of  treason,  or  a  confes 
sion  in  open  Court.  A  private  confession  passes  for 
nothing. 

Aaron  Burr,  who  had  been  Vice-President  of  the  United 
States,  was  tried  for  treason  in  1807,  and  acquitted. 

Clause  2. — Tlie  Congress  shall  have  power  to  declare 
the  punishment  of  treason,  but  no  attainder  of  treason 
shall  work  corruption  of  blood,  or  forfeiture,  except  during 
the  life  of  the  person  attainted. 

Had  this  clause  been  omitted  from  the  Constitution, 
Congress  would  still  have  had  the  power  to  declare  what 
punishment  should  be  inflicted  on  a  traitor.  It  was 
inserted,  doubtless,  to  prevent  the  barbarities  usually 
connected  with  the  punishment  of  treason,  and  to  limit 
the  effects  of  attainder.  According  to  the  English  theory 
the  judgment  itself  pronounced  upon  one  who  had  been 
convicted  of  treason  involved  certain  consequences  in  the 
mode  of  his  execution,  as  well  as  in  regard  to  his  estate. 
The  offender  was  put  to  death  in  a  cruel  manner.  His 
bowels  were  to  be  taken  out  while  he  was  yet  alive,  and 
burned  in  his  presence.  His  head  was  cut  off,  and  his 
body  divided  into  quarters. 

The  judgment  also  involved  attainder,  which  worked 
corruption  of  blood,  or  forfeiture.  There  was  no  judg 
ment  of  attainder,  but  the  attainder  followed  the  judg 
ment,  as  a  matter  of  course.  And  this  attainder  in- 


3.  III.  2.  THE  JUDICIARY  — TREASON.  223 

eluded  corruption  of  blood,  or  forfeiture,  as  a  natural 
consequence.  All  his  property,  of  every  description, 
was  forfeited.  And  not  only  so,  his  children  could  not 
inherit  through  him  from  his  ancestors.  All  inheritable 
qualities  were  destroyed  by  corruption  of  blood.  In  a 
country  where  real  estate  was  entailed,  the  children 
were  thus  made  to  suffer  for  the  offense  of  the  parent. 
If  the  property  of  the  traitor  himself  were  confiscated 
to  the  government,  there  would  be  no  hardship  to  the 
children;  for  the  heirs  have  no  right  to  the  estate  while 
the  ancestor  lives.  But  if  the  blood  is  corrupted  so  as 
to  cut  off  the  connection  between  his  children  and  his 
ancestors,  and  prevent  any  inheritance  descending  to 
the  former  from  the  latter  after  his  death,  the  children 
would  suffer. 

Our  Constitution  mitigates  the  severity  of  this  pun 
ishment.  It  provides  that  the  offender  himself  shall 
bear  all  the  punishment.  There  shall  be  no  corruption 
of  blood  except  during  the  life  of  the  party  attainted. 
As  Mr.  Madison  says,  "The  Convention  have  restrained 
Congress  from  extending  the  consequences  of  guilt  be 
yond  the  person  of  its  author."  l  If  there  should  be  any 
attainder  in  the  punishment  of  treason,  it  must  not  be 
allowed  to  work  corruption  of  blood  after  the  death  of 
the  traitor.  The  corruption  of  blood  must  then  cease, 
and  there  can  be  no  new  forfeiture.  It  does  not  mean, 
as  some  have  supposed,  that  if  the  property  of  the 
traitor  has  been  confiscated,  it  must  be  restored  to  his 
heirs  at  his  death.  This  would  involve  the  absurdity 
of  forbidding  the  taking  away,  except  for  the  short 
period  between  sentence  and  execution,  the  property 
of  one  who  had  been  guilty  of  the  highest  offense 
known  to  society,  while  minor  offenses  are  often  pun 
ished  with  heavy  fines. 

The  attainder  spoken  of  in  this  clause  must  be  that 


Federalist,  No.  43. 


224  THE  CONSTITUTION.  3.  III.  2. 

connected  with  the  judgment  pronounced  by  a  Court, 
and  not  a  legislative  attainder.  For  we  have  already 
seen  that  Congress  is  forbidden,  as  also  the  States,  from 
passing  any  bill  of  attainder.  Congress  might  provide 
for  a  judicial  attainder  in  the  case  of  treason,  but  the 
effects  of  this  attainder  must  be  limited  to  the  life  of 
the  offender. 

By  act  of  April,  1790,  Congress  provided  that  treason 
should  be  punished  with  death  by  hanging.  In  1862 
(July  17th),  an  act  of  Congress  declared  that  the  traitor 
should  suffer  death,  and  his  slaves  should  be  made  free; 
or,  at  the  discretion  of  the  Court,  he  should  be  impris 
oned  for  not  less  than  five  years,  and  fined  not  less  than 
ten  thousand  dollars,  and  all  his  slaves  be  made  free;  the 
fine  to  be  levied  on  any  of  his  property,  real  or  personal, 
excluding  slaves.  This  act  was  accompanied  by  a  joint 
resolution,  providing  that  no  punishment  under  the  act 
should  be  so  construed  as  to  work  a  forfeiture  of  real 
estate  of  the  offender  beyond  his  natural  life.  This 
resolution  was  passed  because  the  President  regarded 
the  clause  of  the  Constitution  now  under  consideration 
as  forbidding  the  forfeiture  of  real  property  except 
during  the  life  of  the  offender. 

The  act  of  1790,  referred  to  above,  provides  for  pun 
ishing  a  variety  of  offenses  besides  treason.  Some  of 
these  were  to  be  punished  with  death,  but  most  of 
them  with  fine  and  imprisonment;  the  fines  ranging 
from  one  hundred  to  five  thousand  dollars.  Section  24 
of  the  act  provides  that  "  no  conviction  or  judgment 
for  any  of  the  offenses  aforesaid  shall  work  corruption 
of  blood  or  any  forfeiture  of  estate."  The  language  is, 
that  no  conviction  or  judgment  shall  work  any  forfeiture 
of  estate.  To  interpret  it  as  the  President  in  1862  in 
terpreted  the  clause  of  the  Constitution  relating  to  the 
punishment  of  treason,  would  be  to  make  it  contradict 
the  other  sections  of  the  same  act,  which  prescribe 
punishments  by  fines,  i.  e.,  by  the  forfeiture  of  estate. 


4.  I.  THE  JUDICIARY— FORFEITURE.  225 

The  meaning  is  obviously  this :  The  offenses  mentioned 
are  to  be  punished,  some  with  death,  some  with  fines 
and  imprisonment;  but  no  conviction  or  judgment,  as 
such,  or  by  its  own  force,  is  to  work  corruption  of  blood, 
or  any  forfeiture.  The  offender  must  give  up  so  much 
of  his  estate  as  is  needed  to  pay  the  fine  imposed;  but, 
that  being  done,  there  is  to  be  no  loss  of  additional 
property,  in  the  way  of  forfeiture,  as  a  consequence  of 
conviction  or  judgment.  Had  Congress  made  the  pun 
ishment  of  treason  to  be  death  and  the  absolute  for 
feiture  of  all  the  estate  of  the  traitor,  they  would  not 
have  gone  beyond  the  authority  conferred  on  them  by 
the  Constitution.  They  preferred  not  to  go  to  the  limit 
assigned  them.  They  enacted  that  attainder  of  treason 
should  not  work  any  corruption  of  blood  or  forfeiture. 
But  at  the  same  time  they  made  an  absolute  confis 
cation  of  property  for  offenses  much  less  heinous  than 
treason.1 

As  treason  is  a  crime  against  sovereignty,  a  violation 
of  one's  allegiance,  there  can  be  no  treason  against  a 
particular  State.2  If  a  State,  by  its  Courts,  punishes 
treason,  it  must  be  not  as  treason  against  itself,  but  as 
treason  against  the  Union;  and  in  this  view  the  pro 
priety  of  that  State  legislation  which  affixes  to  it  par 
ticular  penalties  is  doubtful.3 

ARTICLE    IV. 

Section  1. — Full  faith  and  credit  shall  be  given  in  each 
State  to  the  public  acts,  records,  and  judicial  proceedings 
of  every  other  State.  And  the  Congress  may,  by  general 
laws,  prescribe  the  manner  in  which  such  acts,  records,  and 
proceedings  shall  be  proved,  and  the  effect  thereof. 

1  For  views  similar   to    those    here    advocated,  see   Story,  Duer, 
Farrar,  Tiffany,  Mansfield,  and  others.     For  the  opposite  view,  see 
Yeaman,  appendix. 

2  Elliot's  Debates,  V,  449.         3  Jameson,  p.  56. 


226  THE   CONSTITUTION.  4.  II.  1. 

"Full  faith  and  credit"  means  that  credit  which  the 
State  itself  gives  to  the  acts,  etc.,  when  proven. 

"  The  public  acts  "  are  the  legislative  acts,  the  enacted 
laws  of  a  State. 

"  Records  "  are  the  registration  of  deeds,  of  wills,  legis 
lative  journals,  etc. 

"  Judicial  proceedings "  are  the  proceedings,  judg 
ments,  orders,  etc.,  of  courts. 

Whenever  the  laws  and  acts  of  one  nation  come  into 
examination  in  any  forensic  controversy  in  another 
nation,  they  must  be  proved  like  other  facts.  The 
Constitution  provides  that  this  shall  not  be  necessary 
as  between  the  different  States  of  the  Union ;  that  the 
judgments,  etc.,  of  one  State  need  not  be  re-examined 
in  another.  But  the  manner  in  which  the  acts  and 
judgments  shall  be  authenticated,  and  what  their  effect 
shall  be,  is  to  be  left  for  Congress  to  declare. 

In  1790,  Congress  enacted  that  the  acts  of  the  legis 
lature  of  a  State  shall  be  authenticated  by  its  seal. 
And  that  the  records  of  a  Court  should  be  proved  by 
the  attestation  of  the  clerk  and  the  seal  of  the  Court 
annexed  (if  there  be  one),  with  the  certificate  of  the 
judge.  It  was  provided,  also,  that  the  records  thus 
authenticated  should  have  such  faith  and  credit  in 
the  Courts  of  other  States  as  they  have  in  the  Courts 
of  the  State  from  which  they  are  taken. 

Sec.  2,  Clause  1. — The  citizens  of  each  State  shall  be 
entitled  to  all  privileges  and  immunities  of  citizens  in  the 
several  States. 

Though  the  word  citizen  is  repeatedly  used  in  the 
Constitution,  it  is  nowhere  denned  in  the  original  in 
strument.  But  the  Fourteenth  Amendment  says,  "All 
persons  born  or  naturalized  in  the  United  States,  and 
subject  to  the  jurisdiction  thereof,  are  citizens  of  the 
United  States,  and  of  the  State  wherein  they  reside." 
Prior  to  the  abolition  of  slavery,  only  free  inhabitants 


4.  II.  1.  PRIVILEGES  OF  CITIZENS.  227 

born  in  the  United  States,  or  naturalized  under  the 
laws  of  Congress,  would  have  been  considered  citizens. 
Every  citizen  of  the  United  States  is  a  citizen  of  the 
State  where  he  resides,  and  every  citizen  of  a  State  is 
a  citizen  of  the  United  States.  One  may  be  a  citizen 
of  the  United  States  and  not  a  citizen  of  any  particu 
lar  State,  because  his  residence  may  be,  not  in  a  State, 
but  in  a  Territory,  or  in  the  District  of  Columbia.  But 
whenever  he  becomes  a  resident  of  a  State  he  becomes 
a  citizen  of  it  also. 

This  clause  of  the  Constitution  provides  that  a  citi 
zen  of  one  State  on  removing  to  another  shall  enjoy  all 
the  rights  and  privileges  of  the  citizens  of  that  State. 
But  he  can  not  claim  any  which  were  peculiar  to  the 
State  he  has  left.  He  can  not  carry  the  local  laws  of 
one  State  with  him  when  he  removes  to  another. 

This  clause  also  provides  that  the  person  and  prop 
erty  of  a  citizen  of  one  State  shall  be  secure  in  every 
other  State.  No  other  part  of  the  Constitution  has 
been  so  frequently  or  flagrantly  violated  as  this.  In 
deed,  until  1866,  no  law  had  been  enacted  by  Congress 
for  carrying  its  provisions  into  effect.  Early  in  that 
year  a  bill  was  passed,  entitled  "  An  Act  to  protect  all 
persons  in  the  United  States  in  their  civil  rights,  and 
furnish  the  means  of  their  vindication."  It  was  vetoed 
by  President  Johnson,  but  receiving  the  requisite  two- 
thirds  vote  of  each  House  became  a  law,  April  6th, 
1866.  It  is  known  as  the  Civil  Rights  Bill.  It  de 
clares,  that  all  persons  born  in  the  United  States, 
and  not  subject  to  any  foreign  po\ver,  excluding  In 
dians  not  taxed,  are  citizens  of  the  United  States;  and 
all  such  citizens,  of  every  race  and  color,  without  regard 
to  any  previous  condition  of  slavery  or  involuntary 
servitude,  shall  have  the  same  right,  in  every  State  or 
Territory  in  the  United  States,  to  make  and  enforce 
contracts,  to  sue,  be  parties,  and  give  evidence ;  to  in 
herit,  purchase,  lease,  sell,  hold,  and  convey  real  and 


228  THE  CONSTITUTION.  4.  II.  1. 

personal  property ;  and  to  full  and  equal  benefit  of  all 
laws  and  proceedings  for  the  security  of  person  and 
property. 

This  act  of  Congress  is,  obviously  enough,  in  conflict 
with  the  language  of  Judge  Taney  in  the  Dred  Scott 
case,  that  "a  free  negro  of  the  African  race  whose  an 
cestors  were  brought  to  this  country  and  sold  as 
slaves,  is  not  a  citizen  in  the  meaning  of  the  Constitu 
tion."  But,  as  has  been  already  stated,  it  has  been 
maintained  by  other  members  of  the  Supreme  Court 
that  this  point  was  not  before  the  Court;  and  therefore 
the  language  above  quoted  is  not  to  be  regarded  as  the 
decision  of  that  body. 

The  study  of  our  governmental  history  shows  that  the 
emancipation  of  a  slave  was  exactly  equivalent  to  the 
naturalization  of  an  alien  or  foreigner.  As  naturaliza 
tion  removed  the  disqualification  of  the  alien,  emanci 
pation  removed  that  of  the  slave.  This  was  the  de 
cision  of  the  Supreme  Court  of  North  Carolina,  in  1836, 
as  delivered  by  Judge  Gaston,  and  it  was  re-affirmed  by 
the  same  Court  in  1848. 

That  the  language  of  Judge  Taney  in  the  same  trial, 
to  the  effect  that  "free  negroes  were  not  regarded  in 
any  State  as  citizens  at  the  time  of  the  Declaration  of 
Independence,  and  the  formation  of  the  Constitution," 
is  not  in  accordance  with  the  teachings  of  history,  two 
facts  will  suffice  to  show.  At  the  time  of  the  ratifica 
tion  of  the  Articles  of  Confederation,  all  free,  native- 
born  inhabitants  of  the  States  of  New  Hampshire,  Mas 
sachusetts,  New  York,  New  Jersey,  and  North  Carolina, 
though  descended  from  African  slaves,  were  not  only 
citizens  of  those  States,  but  such  of  them  as  had  the 
other  necessary  qualifications,  possessed  the  franchise 
of  electors  on  equal  terms  with  other  citizens.1  The 
other  fact  is  this.  On  the  twenty-fifth  of  June,  1778, 


1  Judge  Curtis,  in  Scott  vs.  Sandford. 


4.  II.  2.  WHO  ARE  CITIZENS.  229 

when  the  Articles  of  Confederation  were  under  discus 
sion  in  Congress,  a  motion  was  made  that  the  word 
"white"  should  be  inserted  between  the  words  "free" 
and  "inhabitants"  in  the  fourth  article.  Two  States 
voted  for  the  amendment,  eight  voted  against  it,  and 
the  vote  of  one  State  was  divided.1  This  fourth  article 
corresponds  to  the  clause  of  the  Constitution  which  we 
are  now  considering,  It  reads :  "  The  free  inhabitants 
of  each  of  these  States,  paupers,  vagabonds,  and  fugi 
tives  from  justice  excepted,  shall  be  entitled  to  all 
privileges  and  immunities  of  free  citizens  in  the  sev 
eral  States." 

The  first  section  of  the  Fourteenth  Amendment  to  the 
Constitution  which  was  proposed  by  Congress,  June 
16th,  I860,  and  having  been  ratified  by  three-fourths  of 
the  States,  was  declared  to  be  a  part  of  the  Constitution, 
July  28th,  1868,  is  as  follows :  All  persons  born  or  nat 
uralized  in  the  United  States,  and  subject  to  the  juris 
diction  thereof,  are  citizens  of  the  United  States  and  of 
the  State  wherein  they  reside.  No  State  shall  make  or 
enforce  any  law  which  shall  abridge  the  privileges  or 
immunities  of  citizens  of  the  United  States;  nor  shall 
any  State  deprive  any  person  of  life,  liberty,  or  prop 
erty,  without  due  process  of  law,  nor  deny  to  any  per 
son  within  its  jurisdiction  the  equal  protection  of  the 
law. 

Clause  2. — A  person  charged  in  any  State  with  trea 
son,  felony,  or  other  crime,  who  shall  flee  from  justice, 
and  be  found  in  another  State,  shall,  on  demand  of  the 
executive  authority  of  the  State  from  which  he  fled,  be  de 
livered  up,  to  be  removed  to  the  State  having  jurisdiction 
of  the  crime. 

A  State  has  no  authority  beyond  its  own  limits.     I/ 
a  criminal  should  escape  from  one  State  to  another,  th 


1  Jour.  Cont.  Cong.,  IV,  272. 


230  THE  CONSTITUTION.  4.  II.  2. 

former  could  not  arrest  him  because  lie  is  beyond  her 
boundaries,  and  the  latter  could  not  punish  him  for 
offenses  committed  beyond  her  jurisdiction.  It  was 
necessary  that  a  power  whose  authority  extended  over 
the  whole  country  should  make  provision  for  the  ar 
rest  and  punishment  of  fugitives  from  justice. 

Before  any  law  had  been  enacted  by  Congress  to  carry 
into  effect  this  clause  of  the  Constitution,  the  Governor 
of  Pennsylvania  made  a  requisition  upon  the  Governor 
of  Virginia  to  deliver  up  an  escaping  criminal.  The 
requisition  was  refused  by  the  latter  on  the  ground  that 
the  clause  gave  him  no  authority  to  deliver  up  the  fu 
gitive.  The  case  was  referred  by  the  Governor  of  Penn 
sylvania  to  the  President,  and  by  him  laid  before  Con 
gress.  In  consequence,  the  act  of  1793  was  enacted. 
This  act  provides  that  the  demand  be  made  on  the 
executive  authority  of  the  State  to  which  the  fugitive 
has  fled.  Accompanying  the  demand  should  be  a  copy 
of  the  indictment  found,  or  an  affidavit  made  before  a 
magistrate,  and  certified  as  authentic  by  the  Governor 
making  the  demand.  The  arrest  is  then  made  by  the 
order  of  the  Governor  of  the  State  to  which  the  crim 
inal  has  fled,  and  the  fugitive  is  delivered  to  the  agent 
of  the  former.  All  the  expenses  must  be  paid  b}T  the 
State  from  which  the  escape  was  made.  The  act  ap 
plies  to  the  Territories  as  well  as  to  the  States. 

A  fugitive  from  justice  may  be  arrested  and  detained 
prior  to  the  demand  by  the  Governor.  The  executive 
upon  whom  the  demand  is  made  can  not  go  behind  the 
demand  and  accompanying  charge  of  the  Governor  de 
manding,  to  determine  whether,  by  the  laws  of  his  own 
State,  the  offense  charged  is  a  crime. 

The  giving  up  by  one  nation  of  a  fugitive  from  justice 
escaping  from  another  nation,  is  called  extradition.  No 
nation  can  demand  of  another  the  surrender  of  a  crim 
inal  except  in  consequence  of  express  treaty  stipula 
tions. 


4.  II.  3.  FUGITIVES  FROM  SERVICE.  231 

Clause  3. — No  person  held  to  service  or  labor  in  one 
State,  under  the  laws  thereof,  escaping  into  another,  shall, 
in  consequence  of  any  laiv  or  regulation  therein,  be  dis 
charged  from  such  service  or  labor,  but  shall  be  delivered 
up  on  claim  of  the  party  to  whom  such  service  or  labor 
may  be  due. 

The  act  of  February  12th,  1793,  was  passed  to  carry 
into  effect  this  clause  as  well  as  the  preceding  one.  A 
"person  held  to  service  or  labor"  might  be  a  slave  or 
an  apprentice.  This  clause,  and  that  part  of  the  act  of 
Congress  relating  to  fugitives  from  labor,  had  special 
reference  to  slaves,  though  the  word  slave  does  not  occur 
in  the  Constitution.  The  law  of  1793  was  amended  in 
1850,  and  made  still  more  objectionable  to  the  friends 
of  freedom.  The  commissioners,  before  whom  alleged 
fugitives  were  to  be  taken,  might  order  any  citizens  tc 
assist  in  returning  fugitive  slaves;  and  any  person 
hindering  such  return  could  be  fined  one  thousand  dol 
lars  and  imprisoned  six  months,  and  might  forfeit,  in 
addition,  one  thousand  dollars  to  the  owner  for  each  fugi 
tive  so  lost.  The  commissioner  was  to  have  a  fee  of  five 
dollars  if  the  fugitive  was  not  returned  to  the  claimant, 
and  ten  dollars  if  he  was  returned.  The  harsh  features 
of  this  law  of  1850,  with  the  repeal  of  the  Missouri 
Compromise,  and  the  Dred  Scott  decision,  had  much  to 
do  in  directing  public  attention  to  the  evils  of  slavery, 
and  in  preparing  the  people  to  put  down  the  rebellion 
of  1861. 

The  law  of  1850,  and  those  sections  of  the  law  of  1793, 
which  related  to  fugitive  slaves,  were  repealed  June 
20th,  1864.  On  the  "first  of  February,  1865,  Congress 
proposed  an  Amendment  to  the  Constitution,  abolishing 
slavery  throughout  the  United  States.  On  the  eight 
eenth  of  December,  of  the  same  year,  this  was  declared 
to  have  been  ratified  by  the  legislatures  of  three-fourths 
of  the  States.  It  is  the  Thirteenth  Amendment.  Thus 


232  THE  CONSTITUTION.  4.  III. 

was  the  question  of  slavery  at  last  settled— a  question 
which  has  caused  more  disturbance  in  our  government 
than  all  other  questions  combined. 

Sec.  3,  Clause  1. — New  States  may  be  admitted  by  the 
Congress  into  this  Union;  but  no  new  State  shall  be  formed 
or  erected  within  the  jurisdiction  of  any  other  State ;  nor 
any  State  be  formed  by  the  junction  of  two  or  more  States, 
or  parts  of  States,  without  the  consent  of  the  legislatures 
of  the  States  concerned  as  well  as  of  the  Congress. 

Clause  2. —  The  Congress  shall  have  power  to  dispose  of 
and  make  all  needful  rules  and  regulations  respecting  the 
territory  or  other  property  belonging  to  the  United  States  ; 
and.  nofhhig  in  this  Constitution  shall  be  so  construed  as  to 
prejudice  any  claims  of  the  United  States,  or  of  any  par 
ticular  State. 

The  Articles  of  Confederation  made  no  general  pro 
vision  for  the  admission  of  new  States.  Canada  might 
come  into  the  Union  on  acceding  to  the  Articles  of 
Confederation  and  joining  in  the  measures  of  the  United 
States;  but  no  other  colony  could  bo  admitted  unless  by 
the  agreement  of  nine  States.  Vermont  made  applica 
tion  for  admission  in  1781 ;  but  the  application  was  not 
granted,  as  Congress  was  unwilling  to  offend  the  States 
of  New  York  and  New  Hampshire,  both  of  which  claimed 
it  as  within  their  jurisdiction,  and  opposed  its  admis 
sion  into  the  Union.1 

From  the  adoption  of  the  Constitution  to  the  present 
time  twenty-five  new  States  have  been  admitted:  the 
first,  Vermont,  in  1791;  the  last,  Colorado,  in  1876. 
No  State  has  been  formed  by  the  junction  of  two  or 
more  States,  or  parts  .of  States,  while  four  have  been 
created  within  the  jurisdiction  of  other  States:  Ver 
mont  from  New  York  (claimed  also  by  New  Hampshire), 


1  Pitkin's  Hist.,  II,  p.  314. 


4.  III.  NEW  STATES  AND  TERRITORIES.  233 

Kentucky  from  Virginia,  Maine  from  Massachusetts,  and 
West  Virginia  from  Virginia. 

The  language  of  the  Constitution  is,  new  States  may 
be  admitted  into  the  Union.  It  is  not  imperative  upon 
Congress  to  admit  them.  Nor  can  Congress  compel  the 
people  of  a  Territory  to  become  a  State.  For  obvious 
reasons,  however,  this  has  been  regarded  as  desirable, 
and  as  such  has  been  eagerly  sought  by  the  Territories. 

After  the  Colonies  threw  off  the  yoke  of  Great  Britain, 
the  unsettled  territory  within  the  limits  of  the  United 
States  became  a  subject  of  grave  concern.  Some  of  the 
States  claimed  that  those  lands  were  within  their  char 
tered  limits,  and  that  to  them  belonged  both  soil  and 
jurisdiction.  Others  insisted  that,  as  the  war  had  been 
carried  on  under  a  common  government,  and  for  the 
common  interest,  this  territory  should  be  considered  as 
the  common  property  of  the  nation. 

On  the  sixth  of  September,  1780,  Congress  pressed 
upon  the  States  having  claims  to  the  Western  country, 
a  surrender  of  a  portion  of  their  territorial  claims,  as 
they  could  not  be  preserved  entire  without  endangering 
the  stability  of  the  general  Confederacy.  A  month  later 
(October  10th)  Congress  resolved,  that  the  unappro 
priated  lands  that  may  be  ceded  or  relinquished  to  the 
United  States  by  any  particular  State,  pursuant  to  the 
recommendation  of  Congress  of  September  6th,  should 
be  disposed  of  for  the  common  benefit  of  the  United 
States,  and  be  settled  and  formed  into  distinct  repub 
lican  States. 

In  accordance  with  this  recommendation  cessions  were 
made  by  different  States,  as  follows :  New  York,  March 
1st,  1781 ;  Virginia,  March  1st,  1784 ;  Massachusetts, 
April  19th,  1785:  Connecticut,  September  14th,  1786; 
South  Carolina,  August  8th,  1787.  These  were  made 
before  the  formation  of  the  Constitution.  North  Caro 
lina  and  Georgia  had  not  relinquished  their  claims 
when  that  instrument  was  adopted,  but  they  did  so 
C.  G.  20. 


234  THE  CONSTITUTION.  4.  III. 

afterward:  North  Carolina,  February  25th,  1790,  and 
Georgia,  April  24th,  1802.  The  language  of  Clause  2, 
that  the  claims  of  any  particular  State  should  not  be 
prejudiced,  had  reference  to  the  claims  of  the  last  two 
States  named  above. 

The  Constitution  confers  on  Congress  full  power  to 
make  laws  respecting  the  territory  belonging  to  the 
nation  and  not  yet  formed  into  States.  Without  a 
specific  grant  to  that  effect  in  the  Constitution,  Congress 
would  doubtless  have  had  this  power.  The  first  law, 
indeed,  organizing  a  Territory,  was  enacted  before  the 
Constitution  was  adopted — the  Ordinance  for  the  Govern 
ment  of  the  Territory  of  the  United  States  North-west 
of  the  River  Ohio,  July  13th,  1787. 

The  framers  of  the  Constitution  introduced  these  two 
clauses  of  Section  3,  into  the  Constitution,  that  the 
resolution  of  Congress,  of  the  tenth  of  October,  1780, 
might  be  carried  into  effect;  and  they  had  primary 
reference  to  the  territory  then  claimed  by  different 
States.  But  the  language  is  broad  enough  to  cover 
whatever  territory  the  Unitsd  States  might  subse 
quently  acquire.  The  Constitution  nowhere  in  express 
terms  authorizes  the  general  government  to  enlarge  the 
national  domain  by  purchase,  by  conquest,  by  annexa 
tion,  or  in  any  other  mode ;  but  this  is  one  of  the  powers 
incident  to  national  sovereignty,  and  as  such  it  has  been 
repeatedly  exercised  by  the  United  States.  Louisiana 
was  purchased  under  the  administration  of  Mr.  Jeffer 
son  ;  Florida,  under  that  of  Mr.  Monroe ;  Texas  was 
annexed  under  the  presidency  of  Mr.  Tyler;  and  the 
territory  which  was  obtained  from  Mexico  was  con 
quered  under  Mr.  Polk.  All  these  gentlemen  were 
strenuous  advocates  in  theory  of  the  doctrine  that  our 
general  government  is  one  of  limited  and  enumerated 
powers. 

There  is  no  doubt  that  the  United  States,  like  other 
nations,  can  acquire  territory  and  govern  it.  Though 


4.  III.  NEW  STATES  AND  TERRITORIES.  235 

the  Articles  of  Confederation  said  nothing  about  the 
government  of  territory,  Congress  exercised  this  power, 
as  we  have  seen,  and  passed  the  celebrated  ordinance  of 
1787,  while  the  Convention  that  framed  the  Constitution 
was  in  session.  After  the  Constitution  was  adopted 
Congress  did  not  deem  it  necessary  to  re-enact  that 
ordinance,  but  merely  adapted  it  to  the  new  Constitu 
tion,  by  providing  that  the  territorial  officers  who,  be 
fore,  were  appointed  by  Congress,  should  now  be  ap 
pointed  by  the  President  and  Senate,  and  should  report 
to  the  President  instead  of  to  Congress.  This  act,  which 
was  passed  August  7th,  1789,  shows  that  the  members 
of  that  first  Congress  under  the  Constitution  regarded 
the  ordinance  as  still  binding. 

This  ordinance,  for  the  government  of  the  North-west 
Territory,  was  for  a  long  period  the  model  after  which 
other  Territories  were  organized.  If  the  territory  was 
at  the  South,  that  clause  of  the  ordinance  which  pro 
hibited  slavery  was  excepted;  if  the  territory  was  at 
the  North,  the  government  was  to  be  in  all  respects 
similar  to  that  provided  by  the  ordinance  of  1787. 

Including  the  act  of  August  7th,  1789,  eight  separate 
acts  were  passed,  extending  over  a  period  of  over  sixty 
years,  each  one  prohibiting  slavery  in  the  Territory 
organized.  The  power  of  the  general  government  to 
make  all  needful  rules  and  regulations  for  the  govern 
ment  of  the  Territories  was  not  called  in  question  till 
the  winter  of  1856-7,  on  the  trial  of  the  Dred  Scott 
case.  In  giving  the  decision  of  the  Court  in  that  case, 
Judge  Taney  said,  among  other  things  which  were  not 
before  the  Court,  that  Congress  had  no  power  to  pro 
hibit  slavery  in  a  Territory  of  the  United  States. 
Even  if  that  question  had  been  before  the  Court,  be 
ing  a  political  question  and  not  a  judicial  one,  it  was 
one  over  which  that  department  of  the  government 
had  no  control. 

In  the  same  opinion  the  Court  held  that  "  the  pro- 


236  THE  CONSTITUTION.  4.  III. 

priety  of  admitting  a  new  State  into  the  Union  is  com 
mitted  to  tho  sound  discretion  of  Congress,  and  that 
the  power  to  acquire  territory  must  rest  upon  the  same 
discretion."  The  power  to  govern  a  Territory  was  not 
inferred,  however,  from  the  clause  of  the  Constitution 
now  under  consideration,  but  was  regarded  as  the  in 
evitable  consequence  of  the  right  to  acquire  territory, 
which  last  right,  as  there  is  no  allusion  to  it  in  the 
Constitution,  must  be  a  right  of  general  sovereignty. 
Mr.  Douglas  held  that  the  power  of  Congress  to  govern 
the  Territories  was  to  be  found  in  the  clause  authoriz 
ing  the  admission  of  new  States;  if  States  may  be 
admitted  into  the  Union,  Territories  may  be  governed 
so  as  to  fit  them  to  become  States.1  It  is  admitted, 
then,  by  all  that  Congress  has  the  exclusive  right  to 
govern  the  Territories;  though  the  advocates  of  slavery 
would  make  that  right,  as  they  would  all  rights,  sub 
ordinate  to  that  institution.  Since,  however,  slavery 
itself  has  been  abolished  by  the  Thirteenth  Amendment, 
this  only  limitation  is  removed.2 

As  soon  as  new  territory  is  acquired  by  the  United 
States,  the  right  of  sovereignty  vests  in  the  nation. 
The  authority  of  the  nation  over  such  territory  is  ab 
solute,  except  as  modified  by  the  treaty  with  the  nation 
from  which  it  was  obtained.  The  people  of  the  Terri 
tory  have  no  governmental  power  except  as  granted 
by  Congress.  Whenever  Congress  sees  fit,  it  may  or 
ganize  a  territorial  government.  Such  a  government 


1  Report  on  Kansas. 

2  The    Constitution   of   the  Confederate  States   provided   for  the 
acquisition  of  new  territory,  and  its  government  by  Congress.     But 
slavery  was  recognized  and  protected,  and  the  inhabitants  of  other 
States  and  Territories  might  take  their  slaves  into  every  Territory. 
That  Constitution   provided   that   other  States   might  be  admitted 
into  the  Confederacy  by  a  vote  of  two-thirds  of  the  whole   House 
of  Representatives,  and  two-thirds  of  the  Senate  —  the  Senate  voting 
by  States.     (Macpherson's  History  of  the  Rebellion,  1860-65,  p.  99.) 


4.  III.  NEW  STATES  AND  TERRITORIES.  237 

usually  consists  of  a  legislature  chosen  by  the  people, 
a  Governor  appointed  by  the  President  and  Senate,  and 
Judges  appointed  in  the  same  manner.  But  the  ter 
ritorial  authority,  whether  legislative,  executive,  or 
judicial,  derives  its  sanction  from  the  sovereignty  of 
the  nation. 

According  to  our  governmental  system,  the  people  of 
a  Territory,  while  they  have  civil  rights  and  are  en 
titled  to  protection,  have  no  power  to  govern  the  Ter 
ritory,  that  is,  to  govern  themselves,  save  as  it  is  given 
them  by  the  general  government;  and  they  can  not 
in  any  way  participate  in  the  general  authority  of  the 
nation.  But  whenever  a  Territory  is  admitted  into  the 
Union  by  Congress,  it  becomes  a  State;  and  as  such  its 
people  are  authorized  under  the  Constitution  to  man 
age  their  local  affairs,  and  to  participate  in  the  ad 
ministration  of  the  nation.  When  a  citizen  of  a  State 
goes  to  reside  in  a  Territory,  he  leaves  behind  him  his 
political  privileges,  though  not  his  civil  rights.  He  has 
no  longer  any  voice  in  the  election  of  President,  or  of  a 
member  of  Congress.  He  can  not  take  part  in  elect 
ing  a  Governor  of  the  Territory. 

A  Territory  is  a  part  of  the  domain  of  the  United 
States;  it  is  a  part  of  the  United  States  considered  as 
the  name  of  the  country,  but  it  is  not  in  the  Union,  in 
the  sense  in  which  a  State  is.  Nor  can  it  come  into 
the  Union  except  as  it  is  admitted  by  Congress.  It 
may  frame  a  State  constitution,  which  its  people  may 
ratify;  but  that  does  not  constitute  it  a  State.  The 
consent  of  Congress  is  indispensable  to  enable  it  to 
become  an  integral  part  of  the  Union.  But  when 
admitted,  and  thus  constituted  a  State,  it  becomes  a 
political  corporation  for  local  purposes,  and  a  part  of 
the  great  political  organization  whose  sway  extends 
over  the  whole  domain.  All  our  political  privileges 
are  thus  dependent  upon  our  being  a  part  of  the  peo 
ple  of  a  State. 


238  THE   CONSTITUTION.  4.  III. 

As  a  Territory  is  not  compelled  to  become  a  State, 
so  a  State  is  not  compelled  to  remain  a  State.  If  a 
State,  as  a  political  organization,  refuses  to  consider 
itself  any  longer  a  member  of  the  great  national  body, 
and  by  deliberate  act  withdraws  from  the  Union,  what 
then?  The  soil  is  still  a  part  of  the  domain  of  the 
United  States,  and  the  people  who  dwell  upon  it  are 
still  subject  to  the  nation.  They  have  simply  given 
up  their  privilege  of  managing  their  own  local  af Fairs, 
and  all  right  to  participate  in  the  government  of  the 
nation.  They  have  no  more  political  authority  than 
the  people  of  a  Territory  before  its  admission  into 
the  Union,  and  they  can  have  none  till  Congress  con 
fers  it  upon  them. 

There  is  no  such  political  entity  known  to  our  governmental 
system  as  a  State  out  of  the  Union.  The  moment  the  with 
drawal  takes  place,  the  existence  of  the  State  as  such 
ceases.  It  is  no  longer  a  State.  If  its  people  can  main 
tain  their  independence  by  the  sword,  they  may  frame 
a  government  and  call  it  what  they  please.  But  whether 
successful  or  unsuccessful,  it  is  no  longer  one  of  the 
United  States  of  America.  It  is  no  longer  a  State  in 
the  American  Union.  If  it  fails  to  gain  its  independ 
ence,  it  is  not  in  the  Union  but  under  it.1 

There  has  not  been  entire  uniformity  in  the  mode 
of  admitting  new  States,  but  the  following  is  the  most 
usual,  and  may  be  considered  the  regular,  mode.  When 
a  Territory  has  a  sufficient  population,  a  petition  is  sent 
to  Congress,  asking  for  leave  to  form  a  State  constitu 
tion,  and  to  be  admitted  into  the  Union.  Congress  then 
passes  an  act,  called  "an  enabling  act,"  authorizing  the 
inhabitants  to  form  a  constitution.  A  Convention 
is  held  for  this  purpose,  and  the  constitution  thus 
formed  is  presented  to  Congress  for  their  approval.  If 
the  proceedings  have  been  regular,  and  the  constitu- 


1  Brownson,  Chap.  xii. 


4.  IV.  NEW  STATES  AND  TERRITORIES.  239 

tion  is  free  from  objection.  Congress  passes  an  act  ad 
mitting  the  new  State  into  the  Union  "on  an  equal 
footing  with  the  original  States,  in  all  respects  what 
ever."  The  case  of  Louisiana  may  be  taken  as  an 
example.  In  March,  1804,  the  country  purchased  of 
France,  under  the  name  of  Louisiana,  was  erected  by 
Congress  into  two  Territories  —  the  District  of  Louisi 
ana,  and  the  Territory  of  Orleans.  In  February,  1811, 
an  act  was  passed  "to  enable  the  people  of  the  Terri 
tory  of  Orleans  to  form  a  constitution  and  State  gov 
ernment,  etc."  April  8th,  1812,  an  act  was  passed,  to 
take  effect  April  30th,  "for  the  admission  of  the  State 
of  Louisiana  into  the  Union,  and  to  extend  the  laws 
of  the  United  States  to  the  said  State." 

This  power  to  admit  new  States  into  the  Union,  and 
to  make  them  equal  participants  with  the  older  States 
in  the  government  is  "one  of  the  new  principles  intro 
duced  into  our  system,  and  is,  perhaps,  the  most  anoma 
lous,  and  most  influential  upon  its  future  destiny.  All 
the  nations  of  antiquity  held  immense  provinces,  which 
constituted  a  part  of  the  State,  for  purposes  of  revenue 
and  armies,  but  were  never  admitted  upon  terms  of 
equality,  and  whose  inhabitants  were  never  citizens.  The 
idea  of  constituting  a  government,  to  be  increased  as  to 
the  source  of  law — by  its  own  colonization,  or  by  recruits 
from  abroad,  is  wholly  new"  l 

Section  4. —  The  United  States  shall  guaranty  to  every 
State  in  this  Union  a  republican  form  of  government,  and 
shaft  protect  each  of  them  against  invasion ;  and,  on  ap 
plication  of  the  legislature,  or  of  the  Executive  (when  the 
legislature  can  not  be  convened)  against  domestic  violence. 

This  clause  makes  a  republican  government  necessary 
in  every  State.  It  could  not  be  obligatory  upon  the 
United  States  to  guaranty  it  to  the  individual  States, 


1  Mansfield's  Pol.  Manual,  p.  192. 


240  THE  CONSTITUTION.  4.  IV. 

unless  it  was  incumbent  on  them  to  have  such  a  gov 
ernment.  It  is  equivalent  to  saying  that  "  no  other 
shall  be  permitted  to  be  established." 1  The  clause  pre 
scribes  a  republican  government  for  all  the  States,  pro 
tection  against  hostile  invasion,  and,  on  request,  against 
domestic  violence.  Every  Gtate  must  have  a  repub 
lican  government,  and  if,  at  any  time,  a  State  is  des 
titute  of  one,  the  general  government  is  bound  to 
provide  it.2 

This  is  the  only  instance  in  the  Constitution  where 
the  government  has  a  duty  enjoined  upon  it,  while  the 
particular  department  is  not  mentioned.  Here  the  ob 
ligation  is  from  the  United  States  to  the  States;  but 
whether  to  be  exercised  by  the  President  or  by  Con 
gress  is  one  of  the  questions  that  has  grown  out  of  the 
reconstruction  measures.3  In  the  case  of  Rhode  Island, 
the  Supreme  Court  held  that,  "It  rests  with  Congress 
to  decide  what  government  is  the  established  one  in  a 
State.  For,  as  the  United  States  guaranty  to  each  State 
a  republican  government,  Congress  must  necessarily  de 
cide  what  government  is  established  before  it  can  de 
termine  whether  it  is  republican  or  not.  And  when 
the  Senators  and  Representatives  of  a  State  are  admit 
ted  into  the  councils  of  the  Union,  the  authority  of  the 
government  under  which  they  are  appointed,  as  well  as 
its  republican  character,  is  recognized  by  the  proper 
constitutional  authority.  And  its  decision  is  binding 
on  every  other  department  of  the  government,  and 
could  not  be  questioned  in  a  judicial  tribunal."4 

The  Constitution  does  not  define  a  republican  govern 
ment.  The  national  government  may  be  assumed  to 
be  republican  in  form,  and  thus  a  model  for  the  States. 
Mr.  Madison  says:  "We  may  define  a  republic  to  be  a 
government  which  derives  all  its  powers  directly  or  in- 


1  Curtis,  Hist,  of  the  Const.,  II,  p.  472.        2Farrar,  p.  221. 
3  Paschal,  p.  242.         47  Howard,  42. 


4.  IV.  THE  STATES  MUST  BE  REPUBLICAN.  241 

directly  from  the  great  body  of  the  people,  and  is  ad 
ministered  by  persons  holding  their  offices  during  pleas 
ure,  for  a  limited  period,  or  during  good  behavior."1 
"  The  principle  of  republicanism  is  the  equal  right  of 
the  people,  the  citizens,  all  the  members  of  the  body 
politic.  In  theory  it  is  the  government  of  public 
opinion.  *  *  The  fundamental  principles  of  right 
and  justice  for  the  government,  the  representative 
character  of  the  governors,  and  their  practical  respon- 
sibleness  to  the  governed,  are  the  essentials  of  republi 
canism."  2 

The  Constitution  indirectly  requires  various  provis 
ions  in  the  State  governments  by  enjoining  duties. 
The  Senators  of  the  United  States  are  to  be  elected  by 
the  State  legislatures.  Members  of  the  House  of  Rep 
resentatives  are  to  be  elected  by  the  same  electors  as 
vote  for  the  members  of  the  most  numerous  branch  of 
the  State  legislature.  The  Executive  of  the  States  are 
often  referred  to.  The  Judges  are  to  take  an  oath  to 
obey  the  Constitution  of  the  United  States.  Thus,  the 
States  must  have  the  three  great  departments  of  gov 
ernment — the  legislative,  executive,  and  judicial.  The 
legislature  must  be  in  two  branches,  and  the  most  nu 
merous  branch  must  be  elected  by  the  people.  The 
States  are  supposed  to  have  written  constitutions  (Ar 
ticle  VI). 

It  would  have  been  the  duty  of  the  United  States  to 
protect  each  State  against  invasion  and  domestic  vio 
lence  had  not  this  special  provision  been  inserted,  for 
one  of  the  ends  for  which  the  Constitution  was  ordained 
was  to  provide  for  the  common  defense.  In  the  Con 
vention  that  framed  the  Constitution,  "Mr.  Rutledge 
thought  it  unnecessary  to  insert  any  guaranty.  No 
doubt  could  be  entertained  but  that  Congress  had  the 
authority,  if  they  had  the  means,  to  co-operate  with 


1  Federalist,  No.  39.         2Farrar,  p.  223. 
C.  G.  21. 


242  THE  CONSTITUTION.  4.  I\>. 

any  State  in  subduing  a  rebellion.     It  was  and  would 
be  involved  in  the  nature  of  the  thing."1 

"  It  may  well  be  doubted  if  any  dereliction  of  duty 
on  the  part  of  the  officers  of  the  State,  whether  legisla 
tive  or  executive,  could  afford  an  adequate  excuse  for 
the  general  government  in  suffering  the  regular  admin 
istration  of  the  authorized  republican  government  of  a 
State  to  be  overthrown  and  destroyed,  or  otherwise  sub 
stantially  interfered  with  by  domestic  violence,  under 
circumstances  that  obviously  required  their  authorita 
tive  interposition  for  the  preservation  of  the  peace  and 
good  order  of  the  community."2 

The  clause  of  the  Constitution  now  under  considera 
tion  has  been  brought  prominently  into  notice  in  the 
recent  secession  and  subsequent  reconstruction  of  eleven 
States  of  the  Union.  In  the  six  months  commencing 
with  December,  1860,  ordinances  of  secession,  so  called, 
were  passed  by  conventions  in  South  Carolina,  Missis 
sippi,  Florida,  Alabama,  Georgia,  Louisiana,  Texas, 
Arkansas,  Virginia,  Tennessee,  and  North  Carolina. 
These  conventions  were  entirely  revolutionary  and 
depended  for  their  justification  upon  success.  But  suc 
cess  was  not  theirs.  Their  armies  were  defeated,  after 
an  immense  expenditure  of  blood  and  treasure.  The 
doctrine  of  the  right  of  secession,  or,  which  is  the 
same  thing,  of  absolute  State  sovereignty,  which  they 
had  determined  to  submit  to  the  arbitrament  of  the 
sword,  had  been  proved  to  be  utterly  untenable,  and 
their  States  had  been  placed  in  positions  entirely  ab 
normal. 

"Here,  then,  were  brought  again  into  relations  of 
practical  subjection  to  the  Union  certain  integral  pop 
ulations,  which  had  once  been  Constitutional  States, 
but  which,  having,  by  truancy  from  Constitutional 
courses,  lost  something  necessary  to  that  character, 


Elliot's  Debates,  V,  p.  333.         2Farrar,  p.  229. 


4.  IV.  RECONSTRUCTION  OF  STATES.  243 

were  such  no  longer — were,  indeed,  little  more  than 
' geographical  denominations;'  communities,  which,  al 
though  as  much  in  the  Union,  territorial^,  as  ever, 
were  properly  neither  Constitutional  States  nor  Con 
stitutional  Territories,  but  States  which  had,  sua  gponir, 
for  purposes  of  ambition,  divested  themselves  of  their 
Constitutional  apparel,  and  donned  that  of  treason  and 
rebellion,  and  so  had  forfeited  their  prerogative  as 
States  to  participate  in  governing  the  Union,  and  been 
relegated  to  a  condition  analogous  to  that  of  Territories 
— a  condition  in  which  they  belonged  to  the  Union,  but 
had  rightfully  no  governing  function  whatever,  local  or 
general."1 

The  work  of  reconstruction  had  commenced  in  some 
of  the  States  before  the  close  of  the  war.  A  large  ma 
jority  of  the  legislature  of  Virginia  adhered  to  the  re 
bellion,  but  Congress  recognized  as  the  lawful  legisla 
ture  a  minority  who  assembled  at  Wheeling.  This 
body  sent  Senators  to  Congress,  and  gave  consent  to  the 
formation  of  the  new  State  of  West  Virginia.  In  Mis 
souri  the  governor  and  the  majority  of  the  legislature 
adhered  to  the  rebellion,  and  passed  an  ordinance  of 
secession.  The  State  was  admitted  as  a  member  of  the 
u  Confederate  States,"  and  continued  to  be  represented 
in  the  Confederate  Congress  till  the  overthrow  of  the 
Confederacy.  But  a  Convention,  which  had  been  called 
by  the  legislature  of  Missouri  in  1860,  having  refused 
to  pass  an  act  of  secession,  was  reconvened  in  July, 
1861.  This  body  took  upon  itself  the  government  of  the 
State,  and  was  recognized  as  the  lawful  authority  by  the 
general  government. 

In  December,  1863,  President  Lincoln  issued  a  procla 
mation  to  the  effect,  that  when  one-tenth  of  the  quali 
fied  voters  of  a  State,  having  taken  the  required  oath, 
should  re-establish  the  State  government,  republican  in 


1  Jameson,  p.  244. 


244  THE  CONSTITUTION.  4.  IV. 

form  and  in  conformity  with  the  oath,  it  should  ho 
recognized  as  the  true  government  of  the  State,  and 
should  receive  the -benefits  of  the  Constitutional  guar 
anty  embodied  in  this  clause  which  we  are  now  con 
sidering.  In  pursuance  of  this  proclamation,  Louisiana 
and  Arkansas  provided  themselves  with  loyal  State 
governments.  But  these  States  having  been  recon 
structed  through  the  military  power,  the  mode  adopted 
was  not  entirely  satisfactory  to  Congress,  and  the  States 
were  not  allowed  representation  in  that  body. 

The  first  State  that  was  fully  restored  to  her  former 
relations  to  the  Union  was  Tennessee.  On  the  24th 
of  July,  1866,  Congress  passed  a  joint  resolution,  "That 
the  State  of  Tennessee  is  hereby  restored  to  her  former, 
proper,  practical  relations  to  the  Union,  and  is  again  en 
titled  to  be  represented  by  Senators  and  Representatives 
in  Congress."  In  the  preamble  to  this  resolution,  it  is 
recited,  that  the  inhabitants  of  the  State,  having  been 
by  act  of  Congress  declared  to  be  in  a  state  of  insurrec 
tion,  the  State  government  can  be  restored  to  its  former 
political  relations  in  the  Union  only  by  the  consent 
of  the  law-making  power;  that  the  people  by  a  large 
vote,  had  adopted  and  ratified  a  constitution,  abolish 
ing  slavery,  and  declaring  void  all  ordinances  and  laws 
of  secession,  and  debts  contracted  under  the  same ;  and 
had  organized  a  State  government  under  the  new  consti 
tution,  which  had  ratified  the  Thirteenth  and  Fourteenth 
Amendments  to  the  Constitution  of  the  United  States. 

In  March,  1867,  an  "  Act  to  provide  for  the  more 
efficient  government  of  the  rebel  States "  was  passed, 
and,  later  in  the  same  month,  a  supplementary  act 
for  the  same  purpose.  This  act  divided  these  States 
into  five  military  districts,  each  to  be  under  the  com 
mand  of  a  military  officer,  who  should  be  charged  with 
the  duty  of  protecting  the  inhabitants  in  person  and 
property,  of  suppressing  all  disorder,  and  punishing 
crime.  Criminals  might  be  tried  by  the  local  civil 


4.  IV.  THE  RECONSTRUCTION  OF  STATES.  245 

tribunals,  or,  at  the  discretion  of  the  commanding 
general,  by  military  commissions.  The  inhabitants 
were  to  be  registered,  and  an  election  held  for  delegates 
to  a  Convention  in  each  State  for  the  formation  of  a 
constitution.  When  such  constitution  should  be  ap 
proved  by  Congress,  and  the  legislature  elected  under 
its  provisions  had  ratified  the  Fourteenth  Amendment, 
the  State  should  become  entitled  to  representation  in 
Congress. 

Under  this  act  Arkansas  was  admitted  to  representa 
tion  in  Congress  as  one  of  the  States  of  the  Union, 
June  22d,  1868,  having  framed  and  adopted  a  constitu 
tion  of  State  government,  which  Congress  decided  to  be 
republican,  and  her  legislature  having,  ratified  the  Four 
teenth  Amendment.  Three  days  later  an  act  was 
passed  providing  for  the  conditional  admission  to  repre 
sentation  of  North  Carolina,  South  Carolina,  Louisiana, 
Georgia,  Alabama,  and  Florida.  These  had  framed  and 
adopted  constitutions  of  republican  government,  and 
were  to  be  fully  admitted  as  States  of  the  Union  when 
they  should  have  ratified  the  Fourteenth  Amendment. 
In  all  the  above  cases,  including  Arkansas,  the  admis 
sion  was  upon  one  or  more  fundamental  conditions 
prescribed  by  Congress.  All  the  six  States  made  the 
required  ratification,  and  were  admitted  without  further 
legislation  by  Congress,  except  Georgia.  Virginia  was 
restored  by  act  of  Congress  of  January  26th,  1870;  Mis 
sissippi  by  that  of  February  23d;  Texas  by  that  of 
March  30th;  and  Georgia  by  that  of  July  15th,  of  the 
same  year. 

The  action  of  the  general  government  has  fully  set 
tled  this,  that  if  a  State  takes  the  attitude  of  hostility 
to  the  nation,  and  refuses  to  acknowledge  the  supremacy 
of  the  Constitution  of  the  United  States,  it  forfeits  its 
right  to  all  participation  in  the  government  of  the 
Union,  and  can  be  restored  to  its  former  position  only 
by  the  distinct  and  formal  action  of  the  law-making 


246  THE  CONSTITUTION.  4.  IV. 

power  of  the  United  States.  The  doctrine,  that  the 
people  of  a  State  may  take  up  arms  against  the  nation, 
putting  forth  their  whole  energies  and  using  all  their 
resources  to  destroy  the  national  life,  and  yet  the  mo 
ment  they  are  subdued,  claim  the  right  to  send  Sena 
tors  and  Representatives  to  Congress,  is,  in  the  high 
est  degree,  preposterous.  Yet  this  doctrine  was  gravely 
maintained  in  the  Minority  Report  of  the  Joint  Con 
gressional  Committee  on  Reconstruction,  in  June,  1866. 
And  many  worthy  people  seemed  to  be  involved  in 
inextricable  confusion  as  to  the  relation  of  such  States 
to  the  Union. 

The  argument  assumes  this  logical  form :  A  State  is 
either  in  the  Union  or  out  of  the  Union.  If  in  the 
Union,  her  people  owe  allegiance  on  the  one  hand,  and 
are  entitled  to  representation  on  the  other.  If  out  of  the 
Union,  they  do  not  owe  allegiance,  nor  are  they  entitled 
to  representation.  The  inference  drawn  from  this  is, 
that  if  the  people  of  a  State  are  not  allowed  representa 
tion  in  Congress  there  rests  upon  them  no  obligation  of 
obedience ;  and  that  whenever  they  acknowledge  the  ob 
ligation  of  obedience,  representation  is  theirs  as  a  mat 
ter  of  right. 

The  fallacy  lies  here.  The  terms  in  the  Union  and  out 
of  the  Union  are  not  necessarily  contradictory.  A  given 
district  of  the  United  States  may  be  in  one  sense  in  the 
Union,  and  in  another  sense  out  of  the  Union  at  the 
same  time.  That  portion  of  our  country  called  Ohio 
was  a  part  of  the  national  domain  in  1800,  and  all  the 
people  living  there  were  subject  to  the  general  govern 
ment;  in  that  sense  the  district  and  the  people  were  in 
the  Union.  But  the  people  had  no  participation  in  the 
general  government,  they  had  no  Senators  or  Represent 
atives  in  Congress,  they  cast  no  votes  for  President  in 
the  election  of  that  year:  in  this  sense  they  were  not  in 
the  Union.  Two  or  three  years  later  Ohio  was  admitted 
into  the  Union,  and  then  she  was  in  the  Union  in  both 


Art.  5.  AMENDMENTS.  247 

the  senses  stated.  During  the  rebellion  South  Carolina 
was  not  in  the  Union  as  Ohio  was ;  she  was  not  out  of 
the  Union  as  Mexico  was.  She  had  forfeited  her  right 
to  a  share  in  the  government,  but  she  was  under  the 
authority  of  the  United  States. 

Whatever  forms  of  language  may  be  used  to  describe 
the  attitude  of  portions  of  the  country  in  a  state  of  in 
surrection,  and  their  relation  to  the  United  States,  we 
may  be  sure  that  they  will  not  be  admitted  to  a  repre 
sentation  in  the  councils  of  the  nation  till,  in  the  judg 
ment  of  Congress,  such  admission  will  not  conflict  with 
the  well-being  of  the  country.  No  claim  to  be  admitted, 
based  on  the  ground  that  a  State  once  a  State  is  always 
a  State,  will  have  the  slightest  influence  with  those 
who  shall,  for  the  time  being,  be  entrusted  with  the 
legislative  power  of  the  nation,  no  matter  what  may  be 
their  theoretic  opinions  as  to  the  rights  of  States.  The 
war  was  commenced  in  the  interest  of  State  sovereignty, 
and  the  sword  has  settled  the  question.1  Let  us  hope 
that  many  years  may  elapse  before  the  general  govern 
ment  shall  again  be  under  the  necessity  of  exercising 
the  power  with  which  it  is  clothed  by  this  Section  of 
the  Constitution. 

ARTICLE   V. 
AMENDMENTS. 

The  Congress,  whenever  two-thirds  of  both  Houses  shall 
deem  it  necessary,  shall  propose  Amendments  to  this  Con 
stitution,  or,  on  the  application  of  the  legislatures  of  two- 
thirds  of  the  several  States,  shall  call  a  convention  for  pro 
posing  Amendments,  which,  in  either  case,  shall  be  valid  to 
all  intents  and  purposes  as  part  of  this  Constitution,  when 


1  "It  can  not  be  too  often  repeated  that  the  war  was  not  primarily 
between  freedom  and  slavery.  It  was  the  war  of  the  nation  and  the 
Confederacy."  Mulford,  p.  340. 


248  THE  CONSTITUTION.  Art.  5. 

ratified  by  the  legislatures  of  three-fourths  of  the  several 
States,  or  by  conventions  in  three-fourths  thereof,  as  the 
one  or  the  other  mode  of  ratification  may  be  proposed  by 
the  Congress :  Provided,  that  no  Amendment  ichich  may  be 
made  prior  to  the  year  one  thousand  eight  hundred  and 
eight  shall  in  any  manner  affect  the  first  and  fourth  clauses 
in  the  ninth  section  of  the  first  article;  and  that  no  State, 
without  its  consent,  shall  be  deprived  of  its  equal  suffrage 
in  the  Senate. 

Definite  provision  is  here  made  for  amending  the 
Constitution.  The  Articles  of  Confederation  could  not 
be  altered  except  with  the  assent  of  all  the  States.  The 
present  Constitution,  however,  can  be  amended  with 
the  assent  of  three-fourths. 

There  are  two  modes  of  proposing  Amendments,  and 
two  modes  of  ratifying  them.  Congress  itself  may 
propose  an  Amendment  whenever  two-thirds  of  both 
Houses  deem  it  necessary;  or,  if  two  thirds  of  the  State 
legislatures  request  it,  Congress  must  call  a  Convention 
for  proposing  Amendments.  Amendments  thus  pro 
posed  become  valid  when  ratified  by  the  legislatures 
of  three-fourths  of  the  States,  or  by  conventions  in 
three-fourths  thereof. 

Nineteen  Amendments  have  been  proposed  since  the 
adoption  of  the  Constitution;  all  of  them  by  the  first 
mode.  Two-thirds  of  the  legislatures  have  never  yet 
applied  to  Congress  to  call  a  Convention  for  this  pur 
pose.  Fifteen  of  the  Amendments  proposed  have  been 
ratified;  and  these  ratifications  have  all  been  by  the 
first  mode — by  the  legislatures  of  the  States,  and  not 
by  conventions.  The  First  Congress,  which  proposed 
twelve  Amendments,  adopted  this  method  of  ratification, 
and  their  example  has  been  followed  in  every  other  case. 
It  is  fortunate  for  the  country  that  a  Convention  has 
never  been  called  for  the  purpose  of  proposing  Amend 
ments.  The  organic  law  of  a  people  should  be  framed 


Art.  5.  AMENDMENTS.  249 

with  great  care  and  altered  .with  the  utmost  caution.  A 
body  of  men  convened  for  the  purpose  of  suggesting  al 
terations  in  the  Constitution  would  be  likely  to  mag 
nify  their  office  in  proposing  many  Amendments. 

There  are  three  limitations  to  this  power  of  amend 
ing  the  Constitution:  First,  the  clause  could  not  be  al 
tered  which  prohibited  Congress  from  passing,  prior  to 
the  year  1808,  a  law  prohibiting  the  importation  of 
slaves.  Second,  the  clause  prescribing  the  mode  of  levy 
ing  a  capitation  or  other  direct  tax,  could  not  be  altered 
prior  to  the  same  year,  1808.  Third,  no  State,  without 
its  consent,  could  be  deprived  of  its  equal  suffrage  in 
the  Senate. 

The  first  two  limitations  had  reference  to  slaves,  and 
became  inoperative  in  1808.  The  third  was  for  the  pro 
tection  of  the  smaller  States :  to  allow  them  the  same 
representation  in  the  Senate  as  the  larger  States.  This 
provision  was  added  at  the  very  close  of  the  Convention 
that  framed  the  Constitution.  Mr.  Sherman,  of  Con 
necticut,  moved  that  it  be  added  to  the  article,  but  Mr. 
Madison  opposed  it,  and  it  was  lost.  Mr.  Gouverneur 
Morris,  of  Pennsylvania,  subsequently  renewed  the  mo 
tion,  and  it  was  carried  on  Saturday,  September  15th. 
On  Monday  the  Convention  adjourned. 

This  is  the  only  provision  of  the  Constitution  which 
is  virtually  irrepealable.  In  1861  an  Amendment  was 
proposed  by  two-thirds  of  both  Houses,  as  follows:  "No 
Amendment  shall  be  made  to  the  Constitution  which 
will  authorize  or  give  to  Congress  the  power  to  abolish 
or  interfere  within  any  State  with  the  domestic  institu 
tions  thereof,  including  that  of  persons  held  to  labor  or 
service  by  the  laws  of  said  State."  Had  this  Amend 
ment  been  ratified,  it  would  have  been  in  terms  an  irre 
pealable  clause.  Whether  it  would  have  been  so  in 
fact  it  is  not  necessary  now  to  inquire,  as  the  ratifica 
tion  did  not  take  place. 

The  British  Constitution   may  be   altered  by  Parlia- 


250  THE  CONSTITUTION.  Art.  5. 

ment  without  any  confirmation  or  ratification  by  the 
people.  Parliament  is  thus,  says  Mr.  Fisher,  a  "Con- 
yention  to  amend  the  Constitution,  duly  appointed,  al 
ways  in  existence,  and  always  competent  to  entertain 
proposals  for  needed  alterations,  with  full  authority  to 
decide  them.  *  *  *  It  is  a  remarkable  fact  that,  in 
conservative  England,  so  steadfast  in  adhering  to  an 
cient  usage,  the  power  to  make  changes  is  always  ready 
to  act,  without  question  or  form  or  delay,  and  the  or 
ganic  law  is  thus  pliable  and  responsive  to  the  wishes 
of  the  people;  whilst  in  democratic  America,  innovation 
is  guarded  against  with  such  jealous  care  that  it  is 
doubtful  whether  the  means  provided  by  law  for  making 
needed  changes  can  ever  be  employed." 1 

Events  show  that  this  language  is  too  strong;  for, 
since  it  was  written,  in  1862,  three  Amendments  have 
been  made  to  the  Constitution.  Still .  it  may  admit 
of  question  whether  the  .  difficulties  in  the  way  of 
amending  our  organic  law  are  not  too  great  for  the  best 
good  of  the  nation.  These  difficulties  are  forcibly  pre 
sented  in  the  work  just  quoted  from. 

When  an  Amendment  has  been  proposed  by  two- 
thirds  of  both  Houses  of  Congress,  is  the  approval  of 
the  President  necessary?  It  is  only  an  expression  of 
opinion  by  Congress  that  a  certain  Amendment  is  de 
sirable,  which  Article  Fifth  contemplates,  while  the  final 
decision  in  regard  to  it  is  to  be  made  by  other  bodies. 
Then,  again,  a  vote  of"  two-thirds  is  good  against  the 
President's  veto.  We  should  infer,  therefore,  that  the 
approval  of  the  President  is  not  necessary.  And  the 
practice  has  been,  for  the  most  part,  not  to  submit  the 
resolutions  to  the  President  for  approval. 

The  First  Congress  proposed  twelve  Amendments. 
Nothing  was  said  of  the  approval  by  the  President.2 


1  Fisher's  Trial  of  the  Constitution,  p.  30. 

2  Annals  of  Congress  I,  p.  779. 


Art.  5.  AMENDMENTS.  251 

The  Amendment  of  1794 — the  Eleventh  —  was  called 
in  question  because  the  President  had  not  approved 
it;  but  the  Supreme  Court  decided  that  his  approval 
was  not  necessary.1  When  the  Amendment  of  1803  — 
the  Twelfth  —  was  before  the  Senate,  they  voted  — 
twenty-three  to  seven  —  that  it  be  not  submitted.  That 
proposed  at  the  second  session  of  the  Eleventh  Congress 
was  not  sent  to  the  President  for  his  approval.  The 
first  instance  in  which  an  Amendment  proposed  by 
Congress  was  sent  to  the  President  for  his  approval, 
was  in  March,  1861.  The  Amendment  proposed  as  to 
slavery  in  the  United  States  was  approved  by  Presi 
dent  Buchanan.  The  Amendment  of  1865  —  the  Thir 
teenth —  having  been  sent  to  the  President  through 
inadvertence,  the  Senate,  without  a  division,  decided 
that  it  should  not  constitute  a  precedent,  and  the 
Secretary  of  the  Senate  was  instructed  not  to  commu 
nicate  to  the  House  of  Representatives  the  notice  of  the 
approval. 

The  Amendment  of  1866  —  the  Fourteenth — was  not 
submitted  to  President  Johnson  for  his  approval,  of 
which  he  reminds  Congress  in  a  message  and  intimates 
that  he  would  have  vetoed  it  had  the  opportunity  been 
offered.2  The  Fifteenth  Amendment — February  27th, 
1869  —  was  not  sent  to  the  President.  With  this  uni 
formity  of  action  by  Congress,  and  the  decision  of  the 
Supreme  Court,  we  may  say  that  the  approval  of  the 
President  is  not  essential  to""a  resolution  of  Congress 
proposing  Amendments  to  the  Constitution. 

An  Amendment  becomes  valid  when  ratified  by  the 
legislatures  of  three-fourths  of  the  States;  that  is,  it 
becomes  a  part  of  the  Constitution  when  the  ratifica 
tion  has  been  made  by  the  last  State  necessary  to 
complete  the  constitutional  number.  Thus,  the  first 
ten  Amendments,  proposed  by  the  First  Congress,  Sep- 


1  3  Dallas,  378.        2  Senate  Jour.,  39th  Cong.,  1st  Sess.,  p.  563. 


252  THE  CONSTITUTION.  Art.  5. 

tember  25th,  1789,  were  ratified  by  New  Jersey  Novem 
ber  20th  of  that  year,  then  by  others,  till  December  15th, 
1791,  when  the  ratification  of  Virginia  took  place,  mak 
ing  eleven  States,  the  whole  number  being  fourteen.  De 
cember  15th,  1791,  is  thus  considered  the  date  of  these 
Amendments.  The  Eleventh  Amendment  was  declared, 
in  a  message  from  the  President  to  Congress,  dated  Jan 
uary  8th,  1798,  to  have  been  adopted  by  the  requisite 
number  of  States,  and  the  Amendment  bears  the  date  of 
the  President's  message.  Of  the  adoption  of  the  Twelfth 
Amendment  public  notice  was  given  by  the  Secretary 
of  State,  September  25th,  1804.  In  1818,  an  act  was 
passed  making  it  the  duty  of  the  Secretary  of  State,  on 
receiving  official  notice  from  the  States  of  the  adoption 
of  an  Amendment  by  the  requisite  number,  to  cause  the 
Amendment  to  be  published,  with  his  certificate,  that 
it  has  been  duly  ratified.  This  act  is  still  in  force. 

A  question  has  arisen  as  to  the  power  of  a  State  to 
withdraw  her  ratification  of  an  Amendment  to  the  Con 
stitution.  The  legislature  of  New  York  ratified  the 
Fifteenth  Amendment,  and  subsequently  voted  to  with 
draw  the  ratification.  The  same  was  true  of  New 
Jersey  and  Ohio  with  regard  to  the  Fourteenth  Amend 
ment.  In  the  latter  case  the  Secretary  of  State,  after 
reciting  the  facts  of  the  ratification  by  various  States, 
including  New  Jersey  and  Ohio,  and  of  the  subsequent 
rejection  by  these  two,  proceeds:  "I  do  hereby  certify 
that  if  the  resolutions  "of  the  legislatures  of  Ohio  and 
New  Jersey,  ratifying  the  aforesaid  Amendment,  are  to 
be  deemed  as  remaining  of  full  force  and  effect,  not 
withstanding  the  subsequent  resolutions  of  the  legis 
latures  of  those  States,  which  purport  to  withdraw  the 
consent  of  said  States  from  such  ratification,  then  the 
aforesaid  Amendment  has  boen  ratified,  etc." 

Congress  was  not  satisfied  with  this  conditional 
notice  of  adoption,  and  the  next  clay  adopted  a  con 
current  resolution,  declaring  th?  Fourteenth  Amend- 


Art.  5.  AMENDMENTS— RATIFICATION.  253 

ment  to  be  a  part  of  the  Constitution,  and  directing 
the  Secretary  of  State  to  promulgate  it  as  such.  Con 
gress  has  thus  given  its  decision  that  a  State  can  not 
withdraw  its  consent  when  once  given  to  a  Constitu 
tional  Amendment. 

The  correctness  of  this  decision  is  beyond  question. 
The  Constitution  declares  that  an  Amendment  duly 
proposed  shall  become  valid  when  ratified  by  three- 
fourths  of  the  legislatures  of  the  several  States.  When 
a  legislature  has  voted  affirmatively  on  the  question 
of  ratification,  the  work  of  the  State  is  done  so  far  as 
regards  that  Amendment.  That  State  is  counted  as  in 
favor  of  it.  Had  the  vote  been  a  negative  one,  the 
State  could  not  have  been  counted  as  in  favor;  neither 
could  it  had  there  been  no  vote.  A  State  may  reject 
an  Amendment  a  hundred  times,  and  then  ratify  it; 
the  ratification  counts  just  as  much  as  if  it  had  been 
made  on  the  first  vote.  The  Constitution  knows  noth 
ing  of  any  action  of  a  State  legislature  touching  a 
proposed  Amendment,  except  its  ratification.  When 
ever  that  comes  it  is  counted.  It  ma}7  have  been  pre 
ceded  by  any  number  of  rejections,  and  be  followed 
by  as  many;  it  makes  not  the  slightest  difference. 
"Nothing  but  ratification  forecloses  the  right  of  action. 
When  ratified,  all  power  is  expended.  Until  ratified, 
the  right  to  ratify  remains."1 

Another  question  has  been  discussed.  In  a  time  of 
rebellion,  is  a  ratification  of  a  proposed  Amendment 
by  the  legislatures  of  three-fourths  of  the  loyal  States 
sufficient  to  make  the  Amendment  valid?  According 
to  the  views  given  in  commenting  upon  Sections  3 
and  4,  of  the  previous  Article,  this  question  must  be 
answered  affirmatively.  If  a  State  has  forfeited  her 
right  to  participate  in  the  ordinary  legislation  of  the 


1  Governor  Bramlette  to  the  legislature  of  Kentucky,  quoted  by 
Jameson,  p.  520. 


254  THE  CONSTITUTION.  Art.  5. 

nation,  if  she  is  deemed  unfit,  because  of  the  disloyalty 
of  her  people,  to  assist  in  enacting  the  ordinary  laws, 
much  less  can  she  claim  participation  in  the  higher 
and  more  sacreii  work  of  changing  the  great  organic 
law  of  the  nation.  A  proposed  Amendment  to  the 
Constitution  is  no  more  dependent  upon  the  assent  of 
a  State  holding  such  relation  to  the  nation,  than  upon 
that  of  a  Territory. 

But  did  not  Congress  direct  the  recent  Amendments 
to  be  sent  for  ratification  to  the  disloyal  as  well  as  to 
the  loyal  States?  This  was  done,  it  is  true;  but  this 
does  not  prove  that  their  ratifications  were  essential  to 
the  validity  of  the  Amendments.  The  explanation  of 
the  seeming  inconsistency  of  Congress  is  to  be  found 
in  the  peculiar  character  of  these  Amendments  as 
affecting  the  seceding  States.  They  all  had  refer 
ence  to  the  abolishment  of  slavery,  and  to  the  status 
of  the  freedmen.  Congress  made  the  ratification  of 
these  Amendments  by  those  States  a  condition  of  their 
restoration  to  the  Union.  It  was  for  this  reason  that 
the  Amendments  were  sent  to  them,  and  not  because 
such  ratification  was  essential  to  their  validity.  They 
were  all  ratified  by  three-fourths  of  the  loyal  States, 
and  would  be  valid  without  the  assent  of  any  of  the 
others.  The  ratification  by  the  disloyal  States  was 
simply  the  formal  assertion  by  their  legislatures  of 
the  principles  contained  in  the  Amendments,  and  was 
to  that  extent  an  evidence  that  they  might  be  restored 
with  safety  to  their  former  condition  in  the  Union. 

The  Amendments  —  fifteen  in  all — will  be  made  the 
subject  of  comment  in  subsequent  pages.  The  dates 
when  they  were  severally  proposed  and  ratified  are  as 
follows : 

The  First  Ten  Amendments,  proposed  September 
25th,  1789,  ratified  December  15th,  1791. 

The  Eleventh  Amendment,  proposed  March  5thr  1794, 
ratified  January  8th,  1798. 


Art.  6.  1.       CONSTITUTION  AND  LAWS  SUPREME.  255 

The   Twelfth   Amendment,  proposed  December  12th, 
1803,  ratified  September  25th,  1804. 
The  Thirteenth  Amendment,  proposed  January  31st? 

1865,  ratified  December  18th,  1865. 

The    Fourteenth    Amendment,    proposed   June    16th, 

1866,  ratified  July  21st,  1868. 

The  Fifteenth  Amendment,  proposed  February  27th, 
1869,  ratified  March  30th,  1870. 

Of  the  four  Amendments  proposed  by  Congress,  but 
not  ratified  by  the  constitutional  number  of  States,  two 
were  proposed  by  the  First  Congress,  at  the  same  time 
with  the  ten  that  were  ratified.  The  third  was  pro 
posed  at  the  second  session  of  the  Eleventh  Congress. 
The  fourth  was  that  relating  to  slavery,  proposed  March 
2d,  1861,  at  the  close  of  the  Thirty-sixth  Congress. 

ARTICLE   VI. 
MISCELLANEOUS. 

Clause  1. — All  debts  contracted  and  engagements  entered 
into,  before  the  adoption  of  this  Constitution,  shall  be  as 
valid  against  the  United  States  under  this  Constitution  as 
under  the  Confederation. 

A  similar  provision  was  made  in  the  Articles  of 
Confederation.  There  was  a  new  Constitution,  but 
the  nation  was  the  same.  The  nation  under  its  new 
Constitution  would  be  subject  to  all  the  obligations 
assumed  before  this  Constitution  had  been  adopted. 

Clause  2.— This  Constitution,  and  the  lows  of  the  United 
States  which  shall  be  made  in  pursuance  thereof,  and  all 
treaties  made,  or  which  shall  be  made,  under  the  authority 
of  the  United  States,  shall  be  the  supreme  law  of  the  land ; 
and  the  judges  in  every  State  shall  be  bound  thereby,  any 
thing  in  the  constitution  or  laws  of  any  State  to  the  con 
trary  notwithstanding. 


256  THE  CONSTITUTION.  Art.  G.  3. 

The  language  of  this  clause  is  clear  and  explicit. 
The  people  of  the  United  States  established  this  Con 
stitution  for  the  United  States.  It  was  the  work  of 
the  nation  itself,  and  was  binding  in  every  part  of 
the  Republic.  This  clause  was  intended  to  affirm  the 
supremacy  of  the  national  government  over  the  State 
governments.  If  a  law  of  a  State,  though  in  accord 
ance  with  the  constitution  of  that  State,  should  be  in 
conflict  with  the  Constitution  or  a  law  of  the  United 
States,  the  former  must  yield.  The  judges  in  every 
State  are  expressly  required  to  declare  null  and  void 
any  law  of  a  State  thus  in  conflict  with  a  law  of  the 
United  States,  or  with  its  Constitution. 

The  Constitution  of  the  United  States  is  the  organic 
law,  and  all  statutes,  national  and  State,  must  be  in 
conformity  with  its  provisions.  But  there  is  this  wide 
difference  between  the  legislation  of  Congress  and  that 
of  a  State  legislature.  The  former  body  is  guided  by 
the  Constitution  only.  The  latter  must  regard  not 
only  the  National  Constitution,  but  the  laws  enacted 
by  Congress,  as  well  as  its  own  State  constitution. 

A  law  of  the  United  States  is  binding  until  declared 
unconstitutional  by  the  Courts.  As  already  stated,  the 
Supreme  Court  has  declared  very  few  acts  of  Congress 
unconstitutional  since  the  Constitution  was  adopted. 

An  attempt  was  made  by  South  Carolina,  in  1832,  to 
nullify  certain  laws  of  the  Union,  but  it  was  promptly 
suppressed  by  President  Jackson.1 

Clause  3.  —  The  Senators  and  Representatives  before 
mentioned,  and  the  members  of  the  several  State  legisla- 


1  Mr.  John  C.  Calhoun's  plan  is  here  given  as  a  curiosity.  If 
Congress  should  pass  a  law  objectionable  to  any  State,  the  State 
might  reject  it,  and  require  that  it  be  submitted  to  the  several 
States.  If  three-fourths  of  the  States  approved  it,  the  State  should 
submit ;  otherwise  the  law  should  be  null  and  void  so  far  as  con 
cerned  that  State. 


Art.  G.  3.     OATH  TO  SUPPORT  THE  CONSTITUTION.  257 

lures,  and  all  executive  and  judicial  officers,  both  of  the 
United  States  and  of  the  several  States,  shall  be  bound  by 
oath,  or  affirmation,  to  support  this  Constitution;  but  no 
religious  test  shall  ever  be  required  as  a  qualification  to 
any  office  or  public  trust  under  the  United  States. 

This  oath  to  support  the  Constitution  is  required  of 
all  officers,  both  national  and  State,  and  belonging  to 
either  of  the  three  departments,  executive,  legislative, 
judicial.  The  Constitution  itself  (Article  II,  Section  2, 
Clause  7)  prescribes  the  oath  to  be  taken  by  the  Presi 
dent  of  the  United  States.  The  first  statute  enacted 
under  the  Constitution  was  for  the  purpose  of  carrying 
into  effect  the  present  clause.  On  the  first  of  June, 
1789,  a  law  was  passed,  prescribing  the  oath,  as  well  as 
the  time  and  manner  of  taking  it,  by  the  officers  of 
the  United  States,  and  of  the  several  States.  Objection 
was  made  to  the  bill  on  the  ground  that,  while  an 
oath  was  obligatory  upon  all  officers,  State  and  national, 
there  was  no  provision  in  the  Constitution  empowering 
Congress  to  pass  a  law  enjoining  the  oath.  To  this  it 
was  replied  that  the  general  declarations  of  the  Con 
stitution  could  not  be  carried  into  effect  without  par 
ticular  regulations  adapted  to  the  circumstances,  and 
that  these  regulations  must  be  made  by  Congress.1 

The  same  objection  has  been  made  in  numerous 
other  instances,  but  the  answer  above  given  is  suf 
ficient.  Were  the  objection  to  be  regarded  as  valid,  the 
wheels  of  government  must  stop.  The  Constitution  is 
full  of  provisions  requiring  the  performance  of  various 
duties,  while  no  express  power  is  given  to  Congress  to 
pass  laws  prescribing  the  mode  of  performance.  But 
Congress  has  always  regarded  itself  as  possessing  the 
requisite  power.  In  the  first  statute  enacted  under 
the  Constitution,  Congress  decided  that  it  had  this 


1  Annals  of  Congress,  I,  p.  266. 
C.  G.  22. 


258  THE  CONSTITUTION.  Art.  6. 

power,  and  the  law  then  enacted  has  remained  in  force 
to  this  day.  In  regard  to  a  similar  clause  the  Supreme 
Court  held,  that  "the  end  being  required,  it  is  a  just 
and  necessary  implication  that  the  means  to  accom 
plish  it  are  given  also;  or,  in  other  words,  that  the 
power  flows  as  a  necessary  means  to  accomplish  the 
end.  *  *  The  national  government,  in  the  absence 
of  all  positive  provisions  to  the  contrary,  is  bound, 
through  its  proper  departments,  legislative,  judicial,  or 
executive,  to  carry  into  effect  all  the  rights  and  duties 
imposed  on  it  by  the  Constitution." 

The  act  of  June  1st,  1789,  prescribed  the  following 
oath :  "  I,  A.  B.,  do  solemnly  swear,  or  affirm  (as  the 
case  may  be),  that  I  will  support  the  Constitution  of 
the  United  States."  On  the  second  of  July,  1862,  a 
very  stringent  oath  of  office  was  prescribed  for  all  per 
sons  who  should  be  elected  or  appointed  to  any  office 
under  the  general  government.  The  act  required  the 
person  to  take  oath  that  he  had  never  taken  arms 
against  the  United  States,  or  aided  its  enemies;  that  he 
had  not  sought  or  held  office  under,  or  yielded  any  sup 
port  to,  any  pretended  government  hostile  to  the  United 
States.  It  was  applied  to  attorneys  in  1865. 

This  oath  has  been  called  the  "iron  clad  oath,"  and 
it  was  this  act  which  was  pronounced  unconstitu 
tional  by  the  Supreme  Court,  so  far  as  it  related  to  at 
torneys  of  that  Court.  In  1868  (July  llth),  the  retro 
spective  part  of  the  iron-clad  oath  was  abolished  for 
those  persons  having  had  participation  in  the  late  re 
bellion,  from  whom  all  legal  disabilities  shall  have 
been  removed  by  act  of  Congress,  by  a  vote  of  two- 
thirds  of  each  House.  In  1871  (February  15th),  the 
act  of  1868  was  made  applicable  to  all  who  participated 
in  the  rebellion,  who  are  not  ineligible  to  office  by  the 
provisions  of  the  Fourteenth  Amendment. 

The  last  clause  —  touching  a  religious  test  —  provides 
for  universal  toleration.  No  desire  has  ever  been  man- 


Art.  7.  RATIFICATION  OF  THE  CONSTITUTION.  259 

ifested  to  remove  this  prohibition    and  introduce  a  re 
ligious  test. 

When  the  Convention  of  South  Carolina  ratified  the 
Constitution,  they  proposed  this  among  other  Amend 
ments — that  the  word  "other"  should  be  inserted  after 
the  word  "no;"  implying  that  an  oath,  or  affirmation, 
to  support  the  Constitution,  was  itself  a  religious  test.1 

ARTICLE    VII. 
RATIFICATION  OF  THE  CONSTITUTION. 

The  ratification  of  the  Conventions  of  nine  States  shall 
be  sufficient  for  the  establishment  of  this  Constitution  be 
tween  the  States  so  ratifying  the  same. 

The  Articles  of  Confederation  provided  that  no  alter 
ation  should  be  made  in  them  "unless  such  alteration 
be  agreed  to  in  a  Congress  of  the  United  States,  and  be 
afterwards  confirmed  by  tbe  legislature  of  every  State.'' 
This  provision  was  entirely  disregarded  in  adopting 
the  present  Constitution,  showing  that  those  Articles 
were  not  regarded  as  any  thing  more  than  a  provisional 
Constitution.  They  were  in  the  "form  of  a  compact 
among  the  States,"  in  the  language  of  Mr.  Madison. 

The  PEOPLE,  in  whose  name  the  Declaration  of  Inde 
pendence  was  made  on  the  fourth  of  July,  1776,  had 
nothing  to  do  with  the  Articles  of  Confederation.  These 
had  "  no  higher  sanction  than  a  mere  legislative  ratifi 
cation."2  The  Convention  had  now  framed  a  Constitu 
tion  in  the  name  of  the  people,  by  whom  it  was  to  be 
ratified.  Thus  the  old  Articles  of  Confederation  were 
practically  ignored  by  the  Convention,  and  by  the 
people  of  the  United  States. 

In  the  resolution  of  the  Continental  Congress,  adopted 
February  21st,  1787,  which  provided  for  calling  the 


1  Jour.  Cont.  Cong.,  XIII,  p.  171.        2  Federalist,  No.  43. 


260  THE  CONSTITUTION.  Art.  7. 

Convention,  it  was  stipulated  that  the  Convention 
should  report  to  Congress  and  to  the  several  State  legis 
latures  for  action  by  all  these  bodies.  But  the  Conven 
tion,  as  seen  in  this  Article,  did  not  ask  the  ratification 
of  their  work,  either  by  Congress  or  by  the  State  legis 
latures;  but  by  Conventions  of  the  people.  They  not 
only  ignored  the  old  Constitution,  they  also  disregarded 
the  directions  of  Congress  as  expressed  in  the  reso 
lution  under  which  the  Convention  itself  had  been 
called.  In  the  Convention  Mr.  Madison  said  it  was  es 
sential  that  the  direct  action  of  the  people  should  be 
had;  and  that  the  new  Constitution  should  be  ratified 
in  the  most  unexceptionable  form  by  the  supreme  au 
thority  of  the  people  themselves. 

The  Constitution  was  to  be  binding  when  ratified 
by  the  Conventions  of  nine  States  —  two-thirds  of  the 
whole  number.  This  was  the  number  required  under 
the  Confederation  for  declaring  war,  making  treaties, 
emitting  bills  of  credit,  etc. 

The  Constitution  was  signed  by  the  members  of  the 
Convention,  September  17th,  1787,  and  forwarded  to 
Congress,  with  a  resolution  requesting  that  it  be  trans 
mitted  to  the  several  States  for  ratification  by  Conven 
tions.  Another  resolution  was  adopted  by  the  Conven 
tion,  making  suggestions  to  Congress  in  regard  to  the 
mode  of  putting  the  Constitution  into  operation  after 
it  should  be  ratified.  Accompanying  these  resolutions 
was  a  letter  to  the  President  of  Congress,  by  George 
Washington,  President  of  the  Convention. 

On  the  twenty-eighth  of  September,  Congress  voted 
unanimously  to  transmit  the  Constitution  to  the  sev 
eral  State  legislatures,  to  be  by  them  submitted  to 
"  Conventions  of  delegates  chosen  in  each  State  by  the 
people  thereof."  It  was  ratified  by  Delaware,  Decem 
ber  7th ;  by  Pennsylvania,  December  12th ;  by  New 
Jersey,  December  18th;  by  Georgia,  January  2d,  1788; 
by  Connecticut,  January  9th ;  by  Massachusetts,  Feb- 


Art.  7.          RATIFICATION  OF  THE  CONSTITUTION.  261 

ruary  7th ;  by  Maryland,  April  28th ;  by  South  Caro 
lina,  May  23d;  and  by  New  Hampshire,  June  21st. 
This  made  the  requisite  number  of  States. 

On  receiving  the  intelligence  that  the  ninth  State 
had  ratified  the  Constitution,  Congress  appointed  a  com 
mittee  to  report  a  plan  for  putting  the  new  government 
into  operation.  This  Committee  reported  July  14th. 
On  the  thirteenth  of  September,  final  action  was  taken, 
providing  for  the  election  of  the  two  Houses  of  Con 
gress,  and  of  a  President  and  Vice-President,  and  ap 
pointing  the  fourth  day  of  March  as  the  day  on  which 
to  commence  proceedings.  Before  that  day  Virginia 
and  New  York  had  ratified  the  Constitution,  making 
eleven  States.  North  Carolina  had  rejected  it,  and 
Rhode  Island  refused  to  call  a  Convention.  Both,  how 
ever,  ratified  it  subsequently ;  the  former,  November 
21st,  1789,  the  latter,  May  29th,  1790.  It  will  be  re 
membered  that  Rhode  Island  sent  no  delegate  to  the 
Convention  that  framed  the  Constitution. 

The  question  naturally  arises,  what  would  have  been 
the  relation  of  these  two  States  to  the  United  States  had 
they  finally  refused  to  ratify  the  Constitution.  It  has 
been  held  by  some  that  their' status  would  have  been  that 
of  foreign  nations.  This  view  is  believed  to  be  unten- 
ble.  While  the  Constitution  was  undergoing  discussion 
in  the  Conventions,  the  question  as  to  the  relations  to 
the  others  of  any  States  that  should  not  ratify  it,  was 
justly  considered  a  very  delicate  one.  The  object  of 
the  friends  of  the  Constitution  was  to  induce  every  State 
voluntarily  to  adopt  it ;  and  to  announce,  beforehand, 
what  would  be  the  consequences  of  a  refusal,  might 
be  construed  into  a  threat,  and  so  obstruct  the  attain 
ment  of  the  desired  object.1  Of  this  question  Mr.  Mad 
ison  said,  "The  flattering  prospect  of  its  being  merely 
hypothetical  forbids  an  over  curious  discussion  of  it. 


'Farrar,  p.  490. 


262  THE   CONSTITUTION.  Art.  7. 

It  is  one  of  those  cases  which  must  be  left  to  provide 
for  itself.  *  *  Considerations  of  a  common  interest, 
and  above  all,  the  remembrance  of  the  endearing  scenes 
which  are  past,  and  the  anticipation  of  a  speedy  tri 
umph  over  the  obstacles  to  reunion,  will,  it  is  hoped, 
not  urge  in  vain  moderation  on  one  side,  and  prudence 
on  the  other." x 

After  the  Constitution  went  into  operation,  this  ques 
tion  soon  came  before  Congress.  On  the  fifth  of  June, 
1789,  a  resolution  was  introduced  into  the  House  of  Rep 
resentatives,  urging  the  legislature  of  Rhode  Island  to 
call  a  convention.  In  July  a  law  was  passed  imposing 
a  tonnage  duty  of  fifty  cents  a  ton  on  foreign  ships.  In 
September  this  was  suspended  as  to  Rhode  Island  and 
North  Carolina  till  January  15th.  In  February  (North 
Carolina  having  meanwhile  ratified  the  Constitution), 
at  the  request  of  Rhode  Island,  the  suspension  was  ex 
tended  to  April  1st.  Thus  the  ships  of  the  people  of 
Rhode  Island  were  regarded  as  ships  of  citizens  of  the 
United  States,  by  the  request  of  Rhode  Island  herself. 
Meanwhile  the  legislature  had  passed  an  act  providing 
for  a  convention.  On  the  eighteenth  of  May  the  Senate 
of  the  United  States  passed  a  bill  prohibiting  all  com 
mercial  intercourse,  and  demanding  a  sum  of  money 
for  her  proportion  of  the  expenses  of  the  war.  But 
before  this  was  acted  on  by  the  House  of  Representa 
tives,  Rhode  Island  had  made  the  desired  ratification. 
Among  the  reasons  urged  in  the  House  for  not  passing 
the  Senate  bill,  was  this :  That  Rhode  Island  was  about 
to  hold  a  convention;  it  would  be  pleasanter  for  all 
that  she  should  come  in  freely;  if  the  bill  should  pass 
and  she  were  to  come  in,  she  would  be  like  "a  soldier 
pressed  into  the  service,  looked  upon  as  unworthy  to  be 
ranged  with  the  volunteers.1' 

A  careful  study  of  the  proceedings  in  Congress  will 


'Federalist,  No.  43. 


Art.  7.  AMENDMENTS.  263 

show  that  steps  looking  toward  coercion  had  already 
been  taken;  and  that,  had  Khode  Island  much  longer 
refused  to  ratify  the  Constitution,  she  would  have  been 
compelled  to  choose  between  the  condition  of  a  State 
in  the  Union  and  that  of  a  Territory  or  district  under  it. 
Rhode  Island  was  a  part  of  the  domain  of  the  United 
States,  and  she  could  not  be  allowed  to  alienate  it. 

"Both  Rhode  Island  and  North  Carolina  were  com 
ponent  parts  of  the  nation;  and  no  practical  statesman 
will  admit  for  a  moment  that  they  could  have  been 
permitted,  by  a  permanent  refusal  to  take  part  in  the 
new  government,  to  constitute  themselves  independent 
foreign  nations  in  the  heart  of  the  Republic.''1 

"  If  nine  States  had  ratified  the  Constitution,  and 
the  other  four  had  stood  out  and  refused  to  do  it,  which 
was  within  their  competency,  they  would  not  have  been 
independent  sovereign  States  outside  of  the  Union,  but 
Territories  under  the  Union." 8 


AMENDMENTS. 

The  Constitution  makes  provision  for  Amendments. 
Nineteen  have  been  proposed  by  Congress,  and  fifteen 
have  been  ratified  by  the  requisite  number  of  States. 

At  the  time  the  Constitution  itself  was  ratified  by 
the  States,  several  of  them  recommended  Amendments. 
In  consequence  of  these  recommendations,  and  to  re 
move  as  far  as  possible  all  objections  on  the  part  of  the 
people  to  the  new  Constitution,  the  subject  was  brought 
up  in  the  First  Congress,  and  the  House  of  Representa 
tives  agreed,  by  the  requisite  vote  of  two-thirds,  to  seven 
teen  Amendments.  The  Senate  reduced  the  number  to 
twelve.  Ten  of  these  were  subsequently  ratified  by  the 
legislatures  of  three-fourths  of  the  States.  The  same 
Congress  decided  that  the  Amendments  should  not  be 


'Farrar,  p.  491.         2  Brownson,  p.  288. 


264  THE  CONSTITUTION.  Amend.  1. 

incorporated  into  the  text  of  the  Constitution,  but  be 
appended  to  it,  as  a  series  of  distinct  provisions.  They 
have  been,  therefore,  numbered  as  so  many  distinct 
Articles.  They, have  the  same  force  as  the  original 
Constitution. 

The  first  ten  Amendments  are  of  the  nature  of  a  bill 
of  rights.  Nothing  of  this  distinctive  character  is  con 
tained  in  the  original  Constitution.  A  motion  was 
made  in  the  Convention  for  a  committee  to  prepare 
such  a  bill,  but  it  did  not  pass.  Five  States  voted  for 
it,  and  five  against  it;  two  were  absent.1  As  the  States 
in  favor  were  Northern,  and  those  against,  Southern, 
the  inference  has  been  drawn  by  some  that  a  bill  of 
rights  was  excluded  in  the  interest  of  slavery.2  Others 
have  contended  that  the  Constitution  itself  was  a  bill 
of  rights.  The  necessity  of  a  distinct  declaration  of 
rights  in  the  Constitution  of  a  republican  government 
is  not  so  obvious  as  under  a  monarchy.  Guaranties 
against  hereditary  monarchs  may  be  needed,  but  the 
people  hardly  need  such  guaranties  against  themselves. 

Article  1. — Congress  shall  make  no  law  respecting  an 
establishment  of  religion,  or  prohibiting  the  free  exercise 
thereof;  or  abridging  the  freedom  of  speech  or  of  the  press; 
or  the  right  of  the  people  peaceably  to  assemble  and  to 
petition  the  government  for  a  redress  of  grievances. 

This  is  a  prohibition  with  reference  to  Congress;  it 
imposes  no  restraint  on  the  action  of  the  States.  It 
has  been  held  that  most  of  the  Amendments  proposed 
by  the  First  Congress  do  not  apply  to  the  States,  but 
to  the  national  government  alone.  The  several  State 
constitutions  contained  provisions  similar  to  those 
found  in  these  Amendments,  restricting  the  operation 
of  those  governments.  It  was,  therefore,  for  the  purpose 
of  restraining  the  various  departments  of  the  general 


1  Elliot,  V,  p.  538.         2  Farrar,  p.  393. 


Amend.  2,  3.  AMENDMENTS.  265 

government  that  these  ton  Amendments  were  proposed. 
This  is  the  view  taken  by  the  Supreme  Court  of  the 
United'  States.1 

Congress  can  not  make  any  religion  the  established 
religion  of  the  nation,  neither  can  it  do  aught  to  pre 
vent  its  free  exercise. 

By  "the  freedom  of  speech  or  of  the  press"  is  meant 
the  right  to  speak  and  publish  whatever  is  not  in  dero 
gation  of  private  rights,  and  which  does  not  disturb  the 
public  peace  or  tend  to  subvert  the  government.  There 
is  danger,  in  a  republican  government,  of  carrying  this 
freedom  to  excess,  both  in  speech  and  in  the  press.  We 
must  be  careful  not  to  injure  others  in  their  rights  of 
any  kind,  or  weaken  the  authority  of  the  government. 
Especially  in  times  of  insurrection  or  rebellion  is 
abundant  caution  needed.  Too  much  regard  can  not 
be  paid  to  time  and  place  and  circumstances.  "I  be 
lieve  in  free  speech,"  said  the  Duke  of  Wellington,  "but 
not  on  board  a  man-of-war." 

The  right  to  assemble  peaceably  and  petition  for  a 
redress  of  grievances  is  too  obvious  to  have  needed 
mention  in  the  Constitution  of  a  free  people. 

Article  2. — A  well-regulated  militia  being  necessary  to 
the  security  of  a  free  state,  the  right  of  the  people  to  keep 
and  bear  arms  shall  not  be  infringed. 

The  militia  are  the  citizen  soldiery  of  the  country, 
as  distinguished  from  the  standing,  or  regular,  army. 
The  militia  system  has  been  allowed  to  fall  into  partial 
decay,  showing  that  the  people  have  little  fear  of  need 
to  defend  themselves  by  force  of  arms  against  their 
government. 

Article  3. — No  soldier  shall,  in  time  of  peace,  be  quar 
tered  in  any  house  without  the  consent  of  the  owner,  nor 
in  time  of  war,  but  in  a  manner  to  be  prescribed  by  law. 


1  7  Wallace,  321. 
C.  G.  23. 


266  THE  CONSTITUTION.  Amend.  4,  5. 6. 

This  was  a  mode  by  which  despotic  rulers  might  op 
press  their  subjects.  To  quarter  soldiers  in  a  house  is 
to  station  them  there  for  lodging  and  subsistence. 
This  article  recognizes  the  maxim  of  the  common  law, 
that  a  man's  house  is  his  castle.  By  owner  is  meant  as 
well  the  occupant  for  the  time  being. 

Article  4r. — The  right  of  the  people  to  be  secure  in 
their  persons,  houses,  papers,  and  effects,  against  un 
reasonable  searches,  and  seizures,  shall  not  be  violated, 
and  no  warrants  shall  issue,  but  upon  probable  cause, 
supported  by  oath  or  affirmation,  and  particularly  de 
scribing  the  place  to  be  searched,  and  the  persons  or  things 
to  be  seized. 

Thia,  like  the  previous  article,  is  for  the  protection 
of  the  citizens.  As  soldiers  could  not  be  quartered 
upon  them,  so  unreasonable  searches  and  seizures  are 
prohibited,  and  every  search  or  seizure  must  be  made 
by  special,  and  not  by  general,  warrant. 

Article  5. — JVo  person  shall  be  held  to  answer  for 
a  capital  or  otherwise  infamous  crime,  unless  on  a  pre 
sentment  or  indictment  of  a  grand  jury,  except  in  cases 
arising  in  the  land  or  naval  forces,  or  in  the  militia 
when  in  actual  service  in  time  of  war  or  public  danger ; 
nor  shall  any  person  be  subject  for  the  same  offense  to  be 
twice  put  in  jeopardy  of  life  or  limb ;  nor  shall  be  com 
pelled  in  any  criminal  case  to  be  a  witness  against  him 
self;  nor  be  deprived  of  life,  liberty,  or  property,  without 
due  process  of  law ;  nor  shall  private  property  be  taken 
for  public  use  without  just  compensation. 

Article  6. — In  all  criminal  prosecutions,  the  accused 
shall  enjoy  the  right  to  a  speedy  and  public  trial,  by 
an  impartial  jury  of  the  'State  and  district  wherein  the 
crime  shall  have  been  committed,  which  district  shall  have 
been  previously  ascertained  by  law,  and  to  be  informed  of 


Amend.  7,  8.  AMENDMENTS.  267 

the  nature  and  cause  of  the  accusation;  to  be  confronted 
with  the  witnesses  against  him  •  to  have  compulsory  pro 
cess  for  obtaining  witnesses  in  his  favor,  and  to  have  the 
assistance  of  counsel  for  his  defense. 

Article  7. — In  suits  at  common  law  where  the  value 
in  controversy  shall  exceed  twenty  dollars,  the  right  of 
trial  by  jury  shall  be  preserved,  and  no  fact  tried  by 
a  jury  shall  be  otherwise  re  examined  in  any  Court  of  the 
United  States,  than  according  to  the  rules  of  the  common 
law. 

These  three  articles  have  already  been  considered  in 
connection  with  Article  III,  Section  2,  Clause  3,  of  the 
Constitution. 

Article  8. — Excessive  bail  shall  not  be  required,  nor 
excessive  fines  imposed,  nor  cruel  and  unusual  punish 
ments  inflicted. 

It  has  been  maintained,  as  already  stated,  that  this 
article  refers  to  the  national  government,  and  not  to 
the  State  governments;  and  the  same  has  been  held 
concerning  some  of  the  articles  that  precede  it.  "The 
.first  ten  Amendments  were  manifestly  adopted  from 
superabundant  caution,  as  these  rights  were  already 
sufficiently  guarded  by  the  State  constitutions  and  bills 
of  rights."1 

While  some  maintain  that  this  Amendment,  as  well 
as  most  of  those  which  precede  it  apply  to  the  State 
governments  as  well  as  the  national,2  the  Courts  have 
taken  the  other  view.  The  language  of  the  Fourteenth 
Amendment  seems  to  imply  the  same,  as  in  it  the 
States  are  prohibited  from  doing  what  the  Fifth 
Amendment  prohibits.  If  the  Fifth  applies  to  the 
State  governments,  what  need  of  the  same  prohibitions 
in  the  Fourteenth? 


'Duer,  p.  344.         2  Farrar,  p.  396. 


268  THE  CONSTITUTION.  Amend.  9,  10. 

Article  9. —  The  enumeration  in  the  Constitution  of 
certain  rights  shall  not  be  construed  to  deny  or  dispar 
age  others  retained  by  the  people. 

The  very  language  of  this  article  shows  the  impossi 
bility  of  making  any  complete  enumeration  of  rights. 
The  inference  might  be  drawn  from  some  of  the  pre 
ceding  articles,  that  what  has  not  been  therein  pro 
hibited,  the  government  has  the  power  to  do.  This 
article  was  inserted  to  prevent  such  an  inference,  by 
the  declaration  that  other  rights  not  specifically  men 
tioned  are  not  therefore  to  be  denied.  But  what  others  ? 
The  matter  is  left  in  fact  just  where  it  was  before  any 
specific  rights  were  enumerated. 

It  was  well  said  by  Mr.  Hamilton  "That  bills  of 
rights  are,  in  their  origin,  stipulations  between  kings 
and  their  subjects,  abridgments  of  prerogative  in  fa 
vor  of  privilege,  reservations  of  rights  not  surrendered 
to  the  prince.  *  *  *  They  have  no  application  to 
constitutions  professedly  founded  upon  the  power  of 
the  people,  and  executed  by  their  immediate  represent 
atives  and  servants.  Here,  in  strictness,  the  people 
surrender  nothing;  and  as  they  retain  every  thing, 
they  have  no  need  of  particular  reservations.  *  *  * 
The  truth  is,  that  the  Constitution  is  itself,  in  every 
rational  sense,  and  to  every  useful  purpose,  A  BILL  OF 

RIGHTS."1 

Article  10.—  The  powers  not   delegated  to  the  United 

States   by  the    Constitution,    nor   prohibited  by   it  to  the 

States,    are    reserved    to    the    States    respectively,  or    to 
the  people. 

No  part  of  the  Constitution  has  been  so  often  incor 
rectly  quoted  as  this.  The  word  "expressly"  has  been 
interpolated  before  the  word  "delegated,"  and  many, 
perhaps,  believe  the  Constitution  to  speak  of  powers 


federalist,  No.  84. 


Amend.  10.  AMENDMENTS.  269 

expressly  delegated  to  the  United  States.  But  the  word 
is  not  in  the  Constitution,  either  in  this  article  or  in 
any  other.  It  was  in  the  Articles  of  Confederation, 
which  was  not  a  real  constitution,  but  only  an  agree 
ment  between  the  States.  It  was  not  strange  that  the 
declaration  was  there  made  that  "  Each  State  retains 
every  power,  jurisdiction,  and  right  which  is  not  by 
this  Confederation  expressly  delegated  to  the  United 
States." 

A  motion  was  made,  when  this  Amendment  was 
under  consideration  in  Congress,  to  insert  the  word 
''expressly,"  but  it  was  not  carried.  Mr.  Madison  ob 
jected  to  it,  "  because  it  was  impossible  to  confine  a 
government  to  the  exercise  of  express  powers;  there 
must  necessarily  be  admitted  powers  by  implication 
unless  the  Constitution  descended  to  recount  every 
minutia."1  A  few  days  afterward  the  motion  was  re 
newed,  and  again  it  was  lost.2 

This  Tenth  Amendment  has  not  only  been  misquot 
ed,  its  meaning  has  been  strangely  perverted.  Says  Dr. 
Cooper,  "Congress,  under  the  Constitution  of  1787,  and 
its  Amendments,  can  exercise  no  rights  or  powers  but 
such  as  are  expressly  enumerated  and  delegated,  or  that 
necessarily  and  unavoidably  flow  from  those  that  are. 
Every  other  right  and  power  is  reserved  by  and  re 
mains  vested  in  the  States;  to  be  delegated  or  not."3 
There  is  no  such  doctrine  as  this  in  the  Constitution; 
if  found  anywhere,  it  is  in  the  old  Articles  of  Confed 
eration.  It  is  not  strange  that  those  who  could  see 
this  in  the  Constitution  could  also  find  secession,  nulli 
fication,  lack  of  right  to  coerce  the  individual  States 
by  the  general  government,  and  want  of  jurisdiction 
in  the  Supreme  Court  in  questions  between  a  State  and 
the  United  States.  ' 


1  Annals  of  Congress  I,  p.  790.         2  Ibid,  p.  797. 
3  Statutes  of  South  Carolina,  I,  p.  217. 


270  THE  CONSTITUTION.  Amend.  10. 

The  meaning  of  the  Amendment  is  plain.  The  peo 
ple  of  the  United  States  are  the  source  of  power.  They 
have  established  a  kind  of  double  government,  that  of 
the  United  States  and  that  of  the  several  States.  The 
people  of  the  United  States  have  authorized  the  gen 
eral  government,  known  as  the  United  States,  to  exer 
cise  large  powers,  and  in  the  same  Constitution  have 
made  various  prohibitions  upon  the  State  governments. 
Whatever  there  may  be  of  the  nature  of  governmental 
power,  which  has  not  been  thus  authorized  to  the 
general  government,  nor  prohibited  to  the  States,  the 
people  of  the  States  may  delegate  to  the  States,  or 
they  may  retain  it  undelegated.  The  States,  as  govern 
mental  corporations,  have  delegated  nothing;  they  have 
retained  nothing.  The  people  of  a  State  may  insert  in 
their  own  constitution  any  power  not  already  inserted 
by  the  whole  people  in  the  Constitution  of  the  United 
States,  and  not  forbidden  by  the  whole  people  to  be 
inserted  in  a  State  constitution. 

The  distinction  between  the  people  and  the  government 
must  never  be  lost  sight  of.  The  people  make  consti 
tutions;  governments  carry  on  the  legislative,  execu 
tive,  and  judicial  departments  of  civil  society  in  con 
formity  with  the  Constitution  thus  made  by  the  people. 
This  is  true  of  the  whole  people  and  of  the  people  of 
the  several  States.  The  people  of  the  United  States  are 
under  no  restrictions  as  to  the  powers  with  which  they 
may  clothe  their  government,  except  those  that  are 
imposed  by  the  great  rules  of  justice  and  right.  But 
the  people  of  a  State  are  restricted.  They  may  not 
confer  on  their  State  government  any  powers  which 
the  whole  people  have  conferred  on  the  United  States 
government,  nor  any  which  the  whole  people  have 
said  shall  not  be  exercised  by  the  State  governments. 
"What  is  not  conferred  by  the  Constitution  is  with 
held,  and  retained  by  the  State  governments,  if  vested 
in  them  by  their  Constitutions;  and  if  not  so  vested,  it 


Amend.  11.  AMENDMENTS.  271 

remains  with  the  people,  as  a  part  of  their  residuary 
sovereignty.  *  *  It  is  a  general  principle  that 
all  bodies  politic  possess  all  the  powers  incident  to  a 
corporate  capacity,  without  any  express  declaration  to 
that  effect;  and  one  of  those  defects  of  the  Confeder 
ation  which  led  to  its  abolition,  was  its  prohibiting 
Congress  from  the  exercise  of  any  power  '  not  expressly 
delegated.' » 1 

These  ten  Amendments  were  proposed  by  Congress  Sep 
tember,  25th,  1789,  and  ratified  December  15th,  1791. 

Article  11. — The  judicial  power  of  the  United  States 
shall  not  be  construed  to  extend  to  any  suit  in  law  or 
equity  commenced  or  prosecuted  against  one  of  the  United 
States  by  citizens  of  another  State,  or  by  citizens  or  sub 
jects  of  any  foreign  State. 

This  Amendment,  which  has  been  considered  already 
in  connection  with  the  Judiciary,  was  proposed  March 
5th,  1794,  and  ratified  January  8th,  1798. 

Article  12. — This  Amendment,  relating  to  the  elec 
tion  of  President  and  Vice-President,  was  given  in  full 
(p.  166,)  when  treating  of  the  Executive  Department. 
It  was  proposed  December  12th,  1803,  and  was  officially 
declared  to  be  ratified  September  25th,  1804. 

Article  13,  Sec.  1.  —  Neither  Slavery  nor  involuntary 
servitude,  except  as  a  punishment  for  crime,  whereof  the 
party  shall  have  been  duly  convicted,  shall  exist  within  the 
United  States,  or  any  place  subject  to  their  jurisdiction. 

Sec.  2. —  Congress  shall  have  power  to  enforce  this  ar 
ticle  by  appropriate  legislation. 

Until  this  Amendment  was  made,  the  word  slavery 
was  not  to  be  found  in  the  Constitution.  If  the  idea 
was  there,  it  was  expressed  by  a  euphemism.  Even  the* 
Amendment  proposed  by  Congress,  March  2d,  1861,  to 


1  Duer,  p.  345. 


272  THE  CONSTITUTION.  Amend.  13. 

which  allusion  has  already  been  made,  spoke  of  "per 
sons  held  to  service  or  labor."  But  now  that  the  in 
stitution  was  to  be  abolished,  it  was  called  by  its  own 
name. 

Slavery  had  already  been  abolished  by  act  of  Con 
gress  in  the  District  of  Columbia,  April  16th,  1862,  and 
in  the  Territories,  June  19th,  of  the  same  year.  The 
President  had  also,  by  proclamation,  January  1st,  1863, 
declared  all  slaves  in  the  rebel  States  free. 

The  resolution  for  the  abolition  of  slavery  was  passed 
by  two-thirds  of  the  Senate,  April  8th,  1864.  But  the 
requisite  majority  was  not  secured  in  the  House  till 
the  following  winter.  It  was  adopted,  January  31st, 
1865,  and  transmitted  to  the  States.  The  ratification 
by  the  requisite  number  of  States  was  announced  De 
cember  18th  of  the  same  year. 

Mr.  Secretary  Seward,  in  his  certificate,  that  the 
Amendment  had  become  valid  as  a  part  of  the  Consti 
tution  of  the  United  States,  named  twenty-seven  States 
— three-fourths  of  thirty-six — as  having  ratified  it.  Of 
these,  eight  had  been  in  the  Rebellion;  and  though 
they  had  formed  new  free-State  constitutions,  under  the 
Proclamations  of  Presidents  Lincoln  and  Johnson,  none 
of  them  had  been  formally  restored  to  the  Union  by  act 
of  Congress.  There  were  then  nineteen  loyal  States 
that  had  ratified  this  Amendment,  and  four  others  did 
so  subsequently  to  the  date  of  the  certificate.  Accord 
ing  to  the  view  taken  in  this  work,  that  a  proposed 
Amendment  becomes  valid  when  ratified  by  three- 
fourths  of  the  loyal  States,  the  Thirteenth  Amendment 
was  truly  a  part  of  the  Constitution  at  the  date  of  the 
Secretary's  certificate,  nineteen  of  the  twenty-five  loyal 
States  having  ratified  it. 

Those  who  think  the  ratifications  of  three-iourths  of 
the  whole  number  of  States  requisite,  maintain  the  le 
gality  of  the  ratification  in  this  way.  The  eight  insur 
rectionary  States  that  ratified  this  Amendment  had 


Amend.  14.  I.  AMENDMENTS.  273 

been  reconstructed  in  accordance  with  executive  proc 
lamations,  though  without  any  official  recognition  by 
Congress.  But  as  this  body  had  not  disapproved  of 
this  reconstruction,  and  as  this  Amendment  had  been 
sent  to  these  States  for  ratification,  Congress  did  give  a 
kind  of  passive  approval  of  the  executive  policy  of 
reconstruction,  and  so  virtually  recognized  them  as 
States.  When,  subsequently,  (March  2d,  1867),  Congress 
declared  these  eight  with  two  others  to  be  in  a  state  of 
insurrection,  the  act  has  no  retrospective  effect.1 

If  the  consistency  of  Congress  is  called  in  question 
in  thus  seeming  to  recognize  these  eight  States  by  ask 
ing  for,  and  receiving,  their  ratifications  of  the  proposed 
Amendment,  and  subsequently  refusing  admission  to 
their  Senators  and  Representatives,  the  explanation 
must  be  left  to  Congress.  But  whether  these  eight  were 
veritable  States  under  the  Constitution,  or  not,  there 
can  be  no  doubt  that  the  Thirteenth  Amendment  has 
been  duly  ratified  by  three-fourths  of  the  loyal  States, 
if  those  only  should  be  counted,  or  by  three-fourths  of 
the  whole. 

The  second  clause  of  the  Amendment  seems  wholly 
superfluous,  as  Congress  has  the  same  power  to  enforce 
this  as  any  other  provision  of  the  Constitution. 

Article  14,  Section  1. — All  persons  born  or  natural 
ized  in  the  United  States,  and  subject  to  the  jurisdic 
tion  thereof,  are  citizens  of  the  United  States  and  of  the 
State  wherein  they  reside.  No  State  shall  make  or  enforce 
any  law  which  shall  abridge  the  privileges  or  immunities 
of  citizens  of  the  United  States;  nor  shall  any  State  de 
prive  any  person  of  life,  liberty,  or  property,  without  due 
process  of  law,  nor  deny  to  any  person  within  its  juris 
diction  the  equal  protection  of  the  laws. 

This    Amendment   was    proposed  by  Congress,  June 


1  Skinner's  Issues  of  American  Politics,  p.  204. 


274  THE  CONSTITUTION.  Amend.  14.  I. 

16th,  1866,  and  was  declared  to  be  a  part  of  the  Con 
stitution,  July  21st,  1868,  by  the  action  of  Congress. 
The  Secretary's  proclamation  is  dated  July  28th. 

The  Thirteenth  Amendment  abolishes  slavery  through 
out  the  United  States.  According  to  the  opinion  given 
by  Mr.  Justice  Swayne,  as  already  quoted,  the  emanci 
pation  of  a  slave  removes  the  obstacle  to  his  citizen 
ship.  Aliens  become  citizens  by  naturalization ;  slaves, 
by  emancipation.  The  act  passed  by  Congress  in  April, 
1866,  known  as  the  Civil  Rights  Bill,  gave  expression 
to  this  opinion.  It  declared  all  persons  born  in  the 
United  States,  and  not  subject  to  any  foreign  power,  ex 
cluding  Indians  not  taxed,  to  be  citizens  of  the  United 
States.  It  conferred  upon  the  freedmen  all  the  rights, 
and  made  them  liable  to  all  the  obligations  of  citizens. 
But  it  was  doubted  by  some  whether  a  mere  act  of  leg 
islation  could  confer  citizenship,  and  whether  it  did 
not  require  the  authority  of  the  Constitution  itself.  To 
make  sure  the  citizenship  of  the  emancipated  popula 
tion,  the  principle  of  the  Civil  Rights  Bill  was  embod 
ied  in  this  Fourteenth  Amendment. 

While  the  first  section  had  its  origin  in  the  purpose 
of  the  people  to  protect  the  colored  population,  the  lan 
guage  is  not  restricted  to  them,  but  is  applicable  as 
well  to  all  the  citizens  of  the  country.  And  as  it  has 
been  maintained  that  the  first  eight  Amendments 
had  no  reference  to  the  State  governments,  but  were 
restraints  upon  the  general  government  only,  this 
Fourteenth  Amendment  declares  explicitly  that  "No 
State  shall  make  or  enforce  any  law  which  shall  abridge 
the  privileges  or  immunities  of  citizens  of  the  United 
States;  nor  shall  any  State  deprive  any  person  of  life, 
liberty,  or  property,  without  due  process  of  law,  nor 
deny  to  any  person  within  its  jurisdiction  the  equal 
protection  of  the  laws." 

In  April,  1871,  an  act  was  passed  to  enforce  the  provis 
ions  of  this  Amendment.  It  was  rendered  necessary, 


Amend  14,  II. 


AMENDMENTS.  275 


in  the  judgment  of  Congress,  in  consequence  of  the 
treatment  received  by  the  colored  people  of  certain 
States  of  the  South,  and  the  failure  of  those  States  to 
afford  them  the  protection  required  by  the  Constitution. 
The  act  is  known  as  the  Ku  Klux  Bill.  It  provides 
that  the  failure  of  a  State  to  protect  any  portion  of  its 
people  against  unlawful  combinations  shall  be  deemed 
a  denial  of  the  protection  guaranteed  in  this  amend 
ment.  Under  this  act  the  President  suspended  the 
writ  of  habeas  corpus  in  certain  counties,  and  suppressed 
the  combinations.1  In  March,  1875,  an  act  was  passed 
entitling  all  persons  to  the  full  and  equal  enjoyment  of 
inns,  public  conveyances,  places  of  amusement,  etc. 

Section  2. — Representatives  shall  be  apportioned  among 
the  several  States  according  to  their  respective  numbers, 
counting  the  whole  number  of  persons  in  each  State,  ex 
cluding  Indians  not  taxed.  But  when  the  right  to  vote 
at  any  election  for  the  choice  of  electors  for  President  and 
Vice- President  of  the  United  States,  Representatives  in 
Congress,  the  executive  and  judicial  officers  of  a  State,  or 
the  members  of  the  legislature  thereof,  is  denied  to  any  of 
the  male  inhabitants  of  such  State,  being  twenty-one  years 
of  age,  and  citizens  of  the  United  States,  or  in  any  way 
abridged,  except  for  participation  in  rebellion  or  other 
crime,  the  basis  of  representation  therein  shall  be  reduced 
in  the  proportion  which  the  number  of  such  male  citizens 
shall  bear  to  the  whole  number  of  male  citizens  twenty-one 
years  of  age  in  such  State. 

So  long  as  there  were  slaves,  three-fifths  of  them  were 
counted  in  order  to  ascertain  the  population  of  a  State, 
and  thus  the  number  of  Representatives  to  which  the 
State  Avas  entitled.  But  slavery  having  been  abolished, 
Representatives  must  be  apportioned  among  the  States 
according  to  their  respective  numbers. 


1  For  a  severe  criticism  of  the  law  see  Skinner,  p.  316. 


276  THE  CONSTITUTION.  Amend.  14.  II. 

The  number  of  Representatives  being  in  proportion 
to  the  whole  population  of  the  States,  including  those 
that  are  colored,  if  suffrage  were  denied  to  this  class, 
the  former  slave  States  would  have  delegations  in 
Congress  much  larger,  in  proportion  to  the  number  of 
voters,  than  the  original  free  States.  To  remedy  this 
inequality  was  the  object  of  this  second  section.  The 
States  are  not  required  to  allow  the  blacks  the  right 
of  suffrage;  but  if  they  do  not  allow  it,  their  represen 
tation  in  Congress  will  be  proportionably  diminished. 
They  may  take  their  choice  between  general  suffrage 
and  more  Congressmen,  or  white  suffrage  and  fewer 
Congressmen. 

This  section  implies  the  normal  case  of  suffrage  to 
be  this :  that  all  male  citizens  of  twenty-one  years  of 
age  may  vote.  For  it  provides  that  if  any  such  are 
not  allowed  by  their  State  to  vote,  the  number  of  Rep 
resentatives  in  such  State  shall  be  diminished.  This 
seems  to  throw  the  moral  influence  of  the  Constitution 
in  favor  of  universal  suffrage.  There  is  nothing,  how 
ever,  to  prevent  any  State  from  prescribing  a  quali 
fication  of  intelligence,  or  one  of  property.  But  as  this 
Amendment  would  reduce  the  number  of  Representa 
tives  in  a  State,  should  any  large  number  of  voters 
be  found  not  to  possess  the  required  qualification,  the 
probability  of  suffrage  limitation  is  rendered  less  than 
before. 

It  has  been  claimed  that  this  Amendment  establishes 
the  principle  of  woman  suffrage.  Does  it?  The  first 
section  declares  who  are  citizens.  All  persons  born  or 
naturalized  in  the  United  States,  and  subject  to  the 
jurisdiction  thereof,  are  citizens.  They  are  citizens  as 
soon  as  born.  Children  are  citizens  as  well  as  men 
and  women.  Citizenship  and  suffrage,  then,  are  not 
the  same.  This  section  confers  civil  rights,  but  not 
political.  A  State  is  prohibited  from  interfering  with 
civil  rights,  but  nothing  is  said  of  suffrage. 


Amend.  14.  III.  AMENDMENTS.  277 

The  second  section  provides  that  if  in  any  State  any 
male  citizens  of  twenty-one  years  of  age  are  denied  the 
rights  of  voting,  the  State  shall  suffer  by  a  proportionate 
reduction  of  the  number  of  Representatives  in  Congress. 
If  citizenship  implied  the  right  to  vote,  no  State  could 
deprive  a  constitutional  citizen  of  that  right.  The 
very  supposition,  in  the  second  section,  that  a  State 
may  deny  the  right  to  vote  to  some  whom  the  Con 
stitution  declares  to  be  citizens,  is  proof  that  one  may 
be  a  citizen  and  yet  be  unable  to  vote;  and,  therefore, 
the  conferring  of  citizenship  is  not  the  conferring  of 
the  right  of  suffrage. 

Again,  those  whom  a  State  may  not  with  impunity 
deprive  of  the  right  of  suffrage,  have  two  requisites: 
they  are  males]'  and  of  the  age  of  twenty-one  years.  A 
State  may  prevent  others  from  voting  as  much  as  she 
pleases;  the  Constitution  contains  no  inhibition,  and 
affixes  no  penalty  for  such  prevention.  If  the  first 
section  gives  women  the  right  to  vote,  the  second 
permits  a  State  to  take  the  right  away.  Virtually  the 
Constitution  in  this  Amendment  indicates  the  essential 
requisites  for  the  exercise  of  suffrage.  Voters  must  be 
male  citizens  of  the  age  of  twenty-one.  These  two  are 
placed  in  the  same  category,  and  hold  precisely  the 
same  relation  to  suffrage.  If  the  right  to  vote  belongs 
by  this  second  section  to  one  not  a  male,  by  the  same 
reasoning  it  belongs  to  one  not  twenty-one  years  old. 
The  real  meaning  is,  that  as  rnales  under  twenty-one 
are  not  expected  to  vote,  so  women  are  not  expected 
to  do  it.  Provision  was  made  to  enforce  this  section 
in  the  act  of  Congress,  passed  February  2d,  1872. 

Section  3. — No  person  shall  be  a  Senator  or  Representa 
tive  in  Congress,  or  elector  of  President  and  Vice- President, 
or  hold  any  office,  civil  or  military,  under  the  United  States, 
or  under  any  State,  who,  having  previously  taken  an  oath, 
as  a  member  of  Congress,  or  as  an  officer  of  the  United  States, 


278  THE  CONSTITUTION.  Amend.  14.  III. 

or  as  a  member  of  any  State  legislature,  or  as  an  executive 
or  judicial  officer  of  any  /State,  to  support  the  Constitution 
of  the  United  States,  shall  have  engaged  in  insurrection  or 
rebellion  against  the  same,  or  given  aid  or  comfort  to  the 
enemies  thereof.  But  Congress  may,  by  a  vote  of  two-thirds 
of  each  House,  remove  such  disability. 

This  section  needs  little  comment.  Those  who,  as 
officers  under  a  State  or  the  Nation,  had  sworn  to  sup 
port  the  Constitution  of  the  United  States,  and  then 
engaged  in  rebellion,  are  precluded  from  again  holding 
office,  except  Congress,  by  a  vote  of  two-thirds,  shall 
remove  the  disability. 

Article  II,  Section  2,  of  the  Constitution  gives  the 
President  power  to  grant  reprieves  and  pardons  for 
offenses  against  the  United  States,  except  in  cases  of 
impeachment.  It  is  doubted  whether  cases  of  amnesty 
were  intended  to  be  included.  Early  in  the  war,  July 
17th,  1862,  Congress  authorized  the  President  to  issue 
proclamations  of  amnesty.  This  was  done  by  President 
Lincoln  and  by  President  Johnson.  In  January,  1867, 
the  authority  was  withdrawn  by  Congress,  but  President 
Johnson  nevertheless  issued  other  proclamations  even 
after  the  ratification  of  this  Amendment.  Whether  he 
had  the  authority  to  issue  such  proclamations  after  the 
repeal  of  the  provision  referred  to,  is  doubtful;  but 
certainly  he  had  no  power,  after  the  adoption  of  this 
Amendment,  to  absolve  from  their  guilt  any  offenders 
included  under  its.  provisions.  As  the  second  section 
of  Article  II  of  the  Constitution  gave  the  pardoning 
power  to  the  President,  so  this  third  section  of  the 
Fourteenth  Amendment  repealed  that  power  so  far  as 
applicable  to  the  classes  named  therein. 

The  disabilities  imposed  by  this  section  were  removed 
from  many  persons  mentioned  by  name  in  the  several 
acts,  and,  in  May,  1872,  Congress  passed  a  general  act, 
removing  such  disabilities  from  all  except  Senators 


Amend.  14.  IV.  AMENDMENTS.  279 

and  Representatives  of  the  Thirty-sixth  and  Thirty- 
seventh  Congresses;  officers  in  the  judicial,  military, 
and  naval  service  of  the  United  States ;  heads  of  de 
partments,  and  foreign  ministers  of  the  United  States. 
These  classes  will  hardly  remain  exceptional  long. 

Section  4-. —  The  validity  of  the  public  debt  of  the 
United  States,  authorized  by  law,  including  debts  incurred 
for  payment  of  pensions  and  bounties  for  services  in  sup 
pressing  insurrection  or  rebellion,  shall  not  be  questioned. 
But  neither  the  United  States  nor  any  State  shall  assume 
or  pay  any  debt  or  obligation  incurred  in  aid  of  insur 
rection  or  rebellion  against  the  United  States,  or  any 
claim  for  the  loss  or  emancipation  of  any  slave ;  but  all 
such  debts,  obligations,  and  claims  shall  be  held  illegal 
and  void. 

This  section  had  immediate  reference  to  the  exist 
ing  public  debt,  which  was  incurred  in  suppressing  the 
rebellion;  but  the  language  is  general,  and  therefore 
applicable  to  all  public  debts.  The  prohibition  as  to 
the  payment  by  the  United  States  or  any  State  of 
any  part  of  a  debt  incurred  in  aid  of  insurrection  or 
rebellion  against  the  United  States,  is  also  general. 
The  measure  is  one  of  obvious  security,  as  under  the 
reconstruction  laws  many  of  those  formerly  in  the 
rebellion  have  been  admitted  again  to  the  State  and 
National  legislatures.  It  is  better  for  all  to  have  the 
question  settled  by  the  adoption  of  a  clause  in  the 
organic  law  itself. 

Section  5. — The  Congress  shall  have  power  to  enforce, 
by  appropriate  legislation,  the  provisions  of  this  article. 

The  same  remark  may  bo  made  of  this  as  of  the  cor 
responding  section  in  the  Thirteenth  Amendment;  it 
seems  to  be  unnecessary.  Whatever  the  Constitution 
requires,  Congress  has  the  power  to  carry  out  by  ap- 


280  THE   CONSTITUTION.  Amend.  15. 

propriate  legislation,  whether  there  be  specific  provision 
for  it  or  not. 

Article  15,  Sec.  1. —  The  right  of  citizens  of  the  United 
States  to  vote  shall  not  be  denied  or  abridged  by  the  United 
States,  or  by  any  State,  on  account  of  race,  color,  or  pre 
vious  condition  of  servitude. 

Sec.  2. —  The  Congress  shall  have  power  to  enforce  this 
article  by  appropriate  legislation. 

The  second  section  of  the  Fourteenth  Amendment 
was  intended  to  secure  suffrage  to  the  freedmen.  This 
was  to  be  done  indirectly,  however.  The  right  of  suf 
frage  was  not  conferred  upon  the  colored  race  by  a  direct 
affirmative  grant,  but  the  States  which  should  with 
hold  it  were  to  have  their  number  of  Representatives 
in  Congress  reduced  in  proportion.  The  measure  was 
not  attended  with  the  success  which  was  anticipated. 
The  enfranchisement  of  the  colored  race  was  deemed 
indispensable  to  their  own  safety  and  to  the  prosperity 
of  the  nation;  and  the  first  plan  to  secure  it  having 
failed,  a  second  was  proposed.  Hence  this  Fifteenth 
Amendment.  It  declares  expressly  that  the  right  of 
citizens  to  vote  shall  not  be  denied  or  abridged  on  ac 
count  of  race,  color,  or  previous  condition  of  servitude. 
The  Fourteenth  Amendment  declared  the  colored  race 
to  be  citizens,  and  thus  gave  them  all  civil  rights;  and 
the  Fifteenth  secures  them  suffrage,  and  thus  bestows 
upon  them  political  rights. 

This  article  does  not,  of  course,  imply  that  all  citizens 
possess  the  right  to  vote.  We  have  seen  that  the  Four 
teenth  Amendment  declares  children,  as  well  as  adults, 
to  be  citizens;  showing  that  to  make  the  right  of 
suffrage  co-extensive  with  citizenship  would  be  simply 
absurd.  The  meaning  is  that  the  right  to  vote  of  those 
citizens  who  enjoy  the  right,  to  wit.,  males  of  twenty- 
one  years,  shall  not  be  denied  on  account  of  race,  color, 
or  previous  condition  of  servitude.  It  may  not  be 


Amend.  15.  AMENDMENTS   NOT  RATIFIED.  281 

denied  for  either  of  these  three  causes,  but  it  may  for 
any  other.  The  freedmen  are  put  upon  an  equality 
with  others  as  to  the  right  of  suffrage.  If  an  educa 
tional  qualification  is  required,  it  will  apply  to  the 
whites  as  well.  So  with  a  property  qualification.  Vir 
tually,  this  Amendment  establishes  universal  suffrage ; 
and  while  some  great  evils  were  in  this  way  prevented, 
the  extension  of  the  elective  franchise  to  a  large 
number  of  ignorant  persons,  can  not  be  viewed  but 
with  deep  regret,  and  with  grave  foreboding.  Weighty 
obligations  rest  on  all  intelligent  citizens  to  extend  to 
this  class  of  our  population  the  opportunities  of  educa 
tion,  that  they  may  vote  intelligently. 

The  right  to  vote  implies  the  right  to  be  voted  for. 

In  May,  1870,  Congress  enacted  a  stringent  law  "  to 
enforce  the  right  of  citizens  of  the  United  States 
to  vote."  It  was  amended  in  February,  1871. 

This  Fifteenth  Amendment  was  proposed  by  Congress, 
February  27th,  1869,  and  declared  to  be  duly  ratified 
March  30th,  1870. 

AMENDMENTS    PROPOSED    BUT    NOT    RATIFIED. 

Besides  the  fifteen  Amendments  which  have  become 
a  part  of  the  Constitution,  four  have  been  proposed  by 
Congress  but  not  ratified  by  the  legislatures  of  three- 
fourths  of  the  States.  Two  of  these  were  proposed  by 
the  First  Congress.  Twelve  were  proposed,  of  which  the 
last  ten  were  ratified.  The  others  were  as  follows : 

1.  After  the  first  enumeration  required  by  the  first 
article  of  the  Constitution,  there  shall  be  one  Repre 
sentative  for  every  thirty  thousand,  until  the  number 
shall  amount  to  one  hundred,  after  which  the  propop 
tion  shall  be  so  regulated  by  Congress  that  there  shall 
be  not  less  than  one  hundred  Representatives,  nor  less 
than  one  Representative  for  every  forty  thousand  per 
sons  until  the  number  of  Representatives  shall  amount 
C.  G.  24. 


282  THE   CONSTITUTION. 

to  two  hundred;  after  which  the  proportion  shall  be 
so  regulated  by  Congress  that  there  shall  not  be  less 
than  two  hundred  Representatives,  nor  more  than  one 
Representative  for  every  fifty  thousand  persons. 

2.  No  law  varying  the  compensation  for  the  services 
of  the  Senators  and  Representatives  shall  take  effect, 
until   an  election  of  Representatives  shall  have  inter 
vened. 

The  following  Amendment  was  proposed  by  the  Elev 
enth  Congress  at  their  second  session : 

3.  If  any  citizen  of  the  United   States  shall  accept, 
claim,  receive,  or  retain  any  title  of  nobility  or  honor, 
or  shall,  without   the  consent  of  Congress,  accept   and 
retain  any  present,  pension,  office,  or  emolument  of  any 
kind   whatever,   from    any   emperor,    king,    prince,    or 
foreign  power,  such   person  shall  cease  to  be  a  citizen 
of  the  United  States,  and  shall  be   incapable   of  hold 
ing  any  office  of  trust  or  profit  under  them  or  either 
of  them. 

The  fourth  of  the  Amendments  proposed  but  not  rati 
fied  was  at  the  close  of  the  Thirty-sixth  Congress,  March 
2d,  1861.  It  has  been  quoted  on  a  former  page. 

4.  No  Amendment  shall  be  made  to  the  Constitution 
which  will  authorize  or  give  to  Congress  the  power  to 
abolish  or  interfere,  within  any  State,  with  the  domestic 
institutions  thereof,  including  that  of  persons   held  to 
labor  or  service  by  the  laws  of  said  State. 


CHAPTER  V. 

THE  RATIFICATION   OF  THE   CONSTITUTION   BY  THE  SEVERAL   STATES. 

The  Convention  which  formed  the  Constitution  met 
in  Philadelphia  on  the  second  of  May,  1787,  but  the 
organization  was  not  effected  till  the  twenty-fifth. 
George  Washington  was  appointed  President.  All  the 
States  were  represented  but  Rhode  Island.  Connecticut 
did  not  send  a  delegation  till  a  fortnight  after  the  time 
appointed,  and  New  Hampshire  was  not  represented 
till  the  twenty-third  of  July. 

The  Constitution  was  adopted  by  the  Convention  on 
Saturday,  September  15th,  and  signed  by  the  members 
on  Monday,  the  17th.  In  the  Convention  the  vote  was 
by  States,  and  as  two  of  the  three  delegates  from  New 
York  —  Messrs.  Lansing  and  Yates  —  had  withdrawn 
when  it  was  decided  to  form  a  new  Constitution  in 
stead  of  revising  the  Articles  of  Confederation,  the 
Constitution  was  adopted  by  the  delegates  from  eleven 
States.  It  was  thought  desirable  that  the  instrument 
should  go  forth  to  the  public  with  the  signatures  of 
the  individual  delegates,  as  well  as  the  official  attesta 
tion  of  the  Convention.  The  following  was  the  form  : 
"  Done  in  Convention,  by  the  unanimous  consent  of 
the  States  present,  the  seventeenth  day  of  September, 
in  the  year  of  our  Lord  1787,  and  of  the  Independence 
of  the  United  States  the  twelfth.  In  witness  whereof, 
we  have  hereunto  subscribed  our  names."  All  the 
delegates  present  signed  it  except  Messrs.  Randolph 
and  Mason  from  Virginia,  and  Mr.  Gerry  from  Massa 
chusetts.  New  York  was  not  officially  present  in  the 

(283) 


284  THE  CONSTITUTION. 

Convention,  but  the  instrument  bears  the  signature  of 
Alexander  Hamilton,  from  that  State,  who  took  a  most 
prominent  part  in  its  deliberations. 

The  following  resolutions,  adopted  by  the  Convention, 
were  transmitted  to  Congress,  with  a  copy  of  the  Consti 
tution,  accompanied  by  a  letter  from  the  President : 

"In  Convention,  Monday,  September  17th,  1787. 

"Resolved,  That  the  preceding  Constitution  be  laid  be 
fore  the  United  States  in  Congress  assembled,  and  that 
it  is  the  opinion  of  this  Convention  that  it  should 
afterwards  be  submitted  to  a  convention  of  delegates, 
chosen  in  each  State  by  the  people  thereof,  under  the 
recommendation  of  its  legislature,  for  their  assent  and 
ratification;  and  that  each  convention,  assenting  to 
and  ratifying  the  same,  should  give  notice  thereof  to 
the  United  States  in  Congress  assembled. 

"Resolved,  That  it  is  the  opinion  of  this  Convention, 
that  as  soon  as  the  conventions  of  nine  States  shall 
have  ratified  this  Constitution,  the  United  States  in 
Congress  assembled,  should  fix  a  day  on  which  electors 
should  be  appointed  by  the  States  which  shall  have 
ratified  the  same,  and  a  day  on  which  the  electors 
should  assemble  to  vote  for  the  President,  and  the  time 
and  place  for  commencing  proceedings  under  this  Con 
stitution.  That  after  such  publication  the  electors 
should  be  appointed,  and  the  Senators  and  Representa 
tives  elected;  that  the  electors  should  meet  on  the  day 
fixed  for  the  election  of  the  President,  and  should  trans 
mit  their  votes,  certified,  signed,  sealed,  and  directed,  as 
the  Constitution  requires,  to  the  Secretary  of  the  United 
States  in  Congress  assembled;  that  the  Senators  and 
Representatives  should  convene  at  the  time  and  place 
assigned;  that  the  Senators  should  appoint  a  President 
of  the  Senate,  for  the  sole  purpose  of  receiving,  open 
ing,  and  counting  the  votes  for  President;  and  that, 
after  he  shall  be  chosen,  the  Congress,  together  with 


THE  MODE  OF  RATIFICATION.  285 

the  President,  should,  without  delay,  proceed  to  execute 
this  Constitution. 

"  By  the  unanimous  order  of  the  Convention, 

"George  Washington,  President. 

"  William  Jackson,  Secretary." 

The  resolution  of  Congress,  adopted  February  21st, 
1787,  recommending  that  a  Convention  should  be  held 
for  the  purpose  of  revising  the  Articles  of  Confedera 
tion,  contemplated  that  those  alterations,  after  being 
agreed  to  by  Congress,  should  be  confirmed  by  the  States. 
But  the  Convention,  in  the  resolutions  transmitted  to 
Congress  with  a  copy  of  the  Constitution,  proposed  that 
this  confirmation  should  not  be  by  the  States,  i.  e.,  by 
the  legislatures  of  the  States,  but  that  the  instrument 
should  "  be  submitted  to  a  convention  of  delegates, 
chosen  in  each  State  by  the  people  thereof." 

The  Articles  of  Confederation  had  been  adopted  by 
Congress  and  ratified  by  the  legislatures  of  the  several 
States.  They  had  never  been  submitted  to  the  people. 
It  was  expected  that  the  alterations  would  be  submitted 
to  the  legislatures  and  not  to  the  people.  The  Conven 
tion  thought,  however,  that  if  the  adoption  of  the  new 
Constitution  were  to  be  referred  to  the  State  legislatures 
it  would  not  rest  on  the  direct  authority  of  the  people. 

The  Articles  of  Confederation  could  not  be  amended 
without  the  assent  of  all  the  States;  but  the  Consti 
tution  was  to  go  into  effect  when  nine  of  the  thirteen 
should  have  ratified  it.  The  Convention,  therefore, 
"had  prepared  a  system  of  government  that  would  not 
merely  alter,  but  would  abolish  and  supersede  the  Con 
federation  ;  and  they  had  determined  to  obtain,  what 
they  regarded  as  a  legitimate  authority  for  this  pur 
pose,  the  consent  of  the  people  of  the  States,  by  whose 
will  the  State  governments  existed."1  The  Articles  of 


1  Curtis's  History  of  the  Constitution,  II,  p.  481. 


286  THE  CONSTITUTION". 

Confederation  were  the  work  of  Congress  and  the  State 
governments.  The  people  had  no  participation  in  them. 
They  were  not  made  in  the  name  of  the  people.  But 
the  Constitution  framed  by  the  Convention  of  1787  was 
in  the  name  of  the  people;  and,  should  it  go  into 
operation,  would  derive  its  validity  from  the  people 
themselves.  Prior  to  the  adoption  of  the  present  Con 
stitution,  the  United  States  were  strictly  without  any 
written  Constitution.  They  had  a  government,  and  the 
relation  of  the  States  to  the  Nation  was  virtually  the 
same  as  now;  but  their  respective  duties  had  not  been 
definitely  stated,  and  there  was  no  little  friction  in  the 
working  of  the  governmental  machinery.  The  mem 
bers  of  the  Convention  had  great  hopes  that  the  new 
Constitution  would  be  found  to  remedy  these  evils,  and 
in  this  they  were  not  disappointed. 

Congress  having  received  the  report  of  the  Conven 
tion,  on  September  28th,  adopted  the  following  reso 
lution  :  "  Resolved,  unanimously,  that  the  said  report, 
with  the  resolutions  and  letter  accompanying  the  same, 
be  transmitted  to  the  several  legislatures,  in  order  to 
be  submitted  to  a  convention  of  delegates,  chosen  in 
each  State  by  the  people  thereof,  in  conformity  to  the 
resolves  of  the  Convention  made  and  provided  in  that 
case."  Congress,  it  will  be  seen,  merely  transmits  the 
Constitution  to  the  State  legislatures,  without  either 
approval  or  disapproval.  This  was  what  the  Convention 
had  requested,  though  a  vote  of  approval  would  have 
facilitated  its  adoption  in  the  conventions  of  the  States. 
But  some  opposition  was  made  in  Congress  to  the  Con 
stitution,  and  to  obtain  unanimity  it  was  necessary, 
says  Mr.  Madison,  to  couch  the  resolution  in  very 
moderate  terms.  It  was  first  contended  that  Congress 
could  not  properly  give  any  positive  countenance  to  a 
measure  which  had  for  its  object  the  subversion  of  the 
Constitution  under  which  they  acted.  This  objection 
having  been  answered,  an  effort  was  made  to  amend 


ITS  ADVOCATES  AND  OPPONENTS.  287 

the  Constitution  by  inserting  a  bill  of  rights,  trial  by 
jury  in  civil  cases,  etc.  Had  this  effort  been  successful, 
it  would,  without  doubt,  have  defeated  the  Constitution, 
as  two  instruments  would  have  been  placed  before  the 
people  for  their  ratification. 

The  Convention  had  kept  their  proceedings  secret, 
and  there  was  consequently  great  anxiety  to  know  the 
character  of  the  new  Constitution.  Singular  rumors 
were  circulated,  among  which  was  one  that  a  system 
of  monarchical  government  had  been  framed,  and  the 
monarch  designated  in  the  person  of  one  of  the  sons  of 
George  III.  But,  two  days  after  the  Convention  ad 
journed,  the  new  Constitution  was  published  in  the 
newspapers  of  Philadelphia,  thus  dispelling  all  doubt  in 
regard  to  it. 

"  It  met  every-where  with  warm  friends  and  warm 
opponents."  Mr.  Curtis  classifies  its  advocates  thus  : 
first,  a  large  body  who  regarded  it  as  the  admirable 
system  which  it  proved  to  be  when  put  into  operation ; 
second,  those  who  believed  it  to  be  the  best  attainable 
government  that  could  be  adopted  by  the  people  of  the 
United  States,  over-looking  defects  which  they  ac 
knowledged,  or  trusting  to  the  power  of  amendment 
which  it  contained;  and,  third,  the  mercantile  and 
manufacturing  classes  who  regarded  its  commercial  and 
revenue  powers  with  great  favor.  "Its  adversaries," 
he  says,  "  were  those  who  had  always  opposed  any 
enlargement  of  the  federal  system ;  those  whose  conse 
quence  as  politicians  would  be  diminished  by  the 
establishment  of  a  government  able  to  attract  into 
its  service  the  highest  classes  of  talent  and  character, 
and  presenting  a  service  distinct  from  that  of  the 
States ;  those  who  conscientiously  believed  its  provis 
ions  and  powers  dangerous  to  the  rights  of  the  States 
and  to  public  liberty;  and,  finally,  those  who  were  op 
posed  to  any  government,  whether  State  or  national  or 
federal,  that  would  have  vigor  and  energy  enough  to 


THE   CONSTITUTION. 

protect  the  rights  of  property,  to  prevent  schemes  of 
plunder  in  the  form  of  paper  money,  and  to  bring 
about  the  discharge  of  public  and  private  debts." 

The  legislatures  of  all  the  States,  except  Rhode 
Island,  called  conventions  of  the  people  to  act  upon  the 
Constitution,  though  in  some  of  them  there  was  strong 
opposition.  Thus  in  New  York  the  resolutions  for  a 
convention  were  passed  by  majorities  of  only  three  in 
the  Senate  and  two  in  the  House ;  and  this  on  the  first 
of  February,  1788,  when  five  States  had  already  ratified 
the  Constitution. 

The  first  ratification  was  by  Delaware,  on  the  seventh 
of.  December,  1787.  It  was  done  unanimously,  and 
without  the  recommendation  of  any  amendment. 

Pennsylvania  was  the  second  to  ratify.  This  was 
done,  without  declaration  or  recommendation,  on  the 
twelfth  of  December,  by  a  vote  of  46  to  23. 

New  Jersey  ratified  the  Constitution  December  18th. 
Her  vote  was  unanimous. 

The  next  was  Georgia,  which  was  also  unanimous  in 
her  ratification.  It  was  done  January  2d,  1788. 

Connecticut  followed  on  the  ninth  of  January,  ratify 
ing  without  any  declaration,  and  without  recommenda 
tions,  by  a  vote  of  128  to  40. 

The  convention  of  Massachusetts  commenced  its  ses 
sions  on  the  ninth  of  Januar}T,  the  day  of  the  ratifica 
tion  by  Connecticut,  and  continued  in  session  till  the 
seventh  of  February.  The  discussion  was  warm  and 
able,  and  the  Constitution  was  ratified  at  last  by  a  ma 
jority  of  only  19  in  a  Convention  of  355.  Nine  amend 
ments  were  recommended,  two  or  three  of  which  were 
included  in  the  amendments  proposed  by  the  First 
Congress. 

Maryland  passed  a  vote  of  ratification  April  28th. 
The  vote  stood  63  to  11,  and  there  were  no  amendments 
or  resolutions. 

South    Carolina   ratified    the   Constitution   May   23d, 


ITS  RATIFICATION   BY   THE   STATES.  289 

1788,  by  a  vote  of  149  to  73.  Several  amendments  were 
recommended. 

The  ninth  State  was  New  Hampshire.  Her  ratifica 
tion  was  made,  June  21st,  1788,  by  a  majority  of  11. 
The  convention  had  assembled  in  February,  but  after 
a  warm  discussion  had  adjourned  to  the  eighteenth  of 
June.  Three  conventions  were  in  session  at  the  same 
time:  that  of  Virginia  having  convened  June  2d,  and 
that  of  New  York  on  the  17th.  New  Hampshire  ac 
companied  her  ratification  with  twelve  amendments, 
of  which  three  were  subsequently  embodied  in  the 
amendments  proposed  by  Congress. 

As  the  Constitution  was  to  become  binding  when 
nine  States  had  ratified  it,  New  Hampshire  completed 
the  number.  As  soon  as  the  intelligence  of  her  action 
reached  Congress,  a  committee  was  appointed  to  report 
an  act  for  putting  the  Constitution  into  operation. 

The  tenth  State  in  the  order  of  ratification  was  Vir 
ginia.  She  ratified  on  the  twenty-fifth  of  June,  by  a 
vote  of  89  to  79. l  It  should  be  stated  that  this  vote  was 
taken  before  the  convention  knew  of  the  action  of  New 
Hampshire.  The  members  of  the  Virginia  Convention 
supposed  that  by  her  ratification  she  would  make  the 
number  complete.  The  convention  proposed  many 
amendments,  and  accompanied  their  ratification  with  a 
declaration  of  rights.  "  We,  the  delegates  of  the 
people  of  Virginia,  *  *  *  do,  in  the  name  and  in 
behalf  of  the  people  of  Virginia,  declare  and  make 
known  that  the  powers  granted  under  the  Constitution, 
being  derived  from  the  people  of  the  United  States, 
may  be  resumed  by  them  whenever  they  shall  be  per 
verted  to  their  injury  or  oppression,  etc." 

This  shows  very  clearly  the  opinion  of  the  majority 


1The  date  usually  given  is  June  26th.     The  vote  of   ratification 
was  on    the   25th ;   an  engrossed   form  of  the    ratification    was    read 
and  signed  by  the  president  on  the  26th.     Elliot,  III,  p.  656. 
C.  G.  25. 


290  THE  CONSTITUTION. 

of  the  members  of  the  convention  as  to  the  source  of 
the  powers  granted  under  the  Constitution.  They 
came,  not  from  the  States,  but  from  the  people  of  the 
United  States. 

New  York  was  the  eleventh  State  to  ratify  the  Con 
stitution.  The  opposition  was  very  strong,  and  it  was 
for  some  time  doubtful  whether  the  vote  of  ratification 
could  be  carried.  It  will  be  remembered  that  two  of 
the  three  delegates  sent  by  New  York  to  the  Conven 
tion  which  framed  the  Constitution,  left  the  Convention 
when  they  became  satisfied  that  a  new  instrument 
would  be  framed.  These  two  delegates  — Messrs.  Lan 
sing  and  Yates — as  well  as  Mr.  Hamilton,  were  in  the 
State  convention.  A  form  of  ratification  was  proposed 
which  provided  that  the  act  of  ratification  was  made 
"on  condition"  that  Congress  would  not  exercise  certain 
powers  till  a  general  Convention  should  be  called  for 
proposing  amendments.  The  words  "  on  condition " 
were  finally  stricken  out,  and  the  words  u  in  full  confi 
dence  "  substituted ;  though  the  vote  was  31  to  29.  In 
this  form  the  ratification  was  voted,  30  to  27,  on  the 
twenty-sixth  of  July. 

A  long  declaration  of  rights  was  made,  and  a  great 
number  of  amendments  proposed. 

The  convention  of  North  Carolina  commenced  its 
session  July  21st,  but  adjourned  on  the  2d  of  August, 
after  passing  a  resolution  that  a  declaration  of  rights 
and  certain  amendments  ought  to  be  laid  before  Con 
gress  and  a  convention  which  might  be  called  for 
amending  the  Constitution,  previous  to  its  ratification 
by  North  Carolina.  This  was  adopted  by  184  to  84. 
More  than  a  year  later  another  convention  was  held, 
and,  on  the  twenty-first  of  November,  1789,  North  Car 
olina  ratified  the  Constitution  by  a  majority  of  11. 
This  was  more  than  eight  months  after  the  Constitution 
had  gone  into  operation.  This  ratification  was  accom 
panied  with  a  bill  of  rights  and  many  amendments, 


ITS   RATIFICATION  BY  THE  STATES.  291 

mostly  like  those  of  Virginia.  It  should  be  noted  that 
delegates  from  North  Carolina,  and  one  of  those  from 
Rhode  Island,  continued  in  Congress  to  the  last,  and 
delegates  from  both  States  voted  on  questions  pertain 
ing  to  the  Constitution  as  late  as  August  6th,  1788. 

Rhode  Island  sent  no  delegates  to  the  Convention 
which  framed  the  Constitution.  When  that  instrument 
was  received  from  Congress,  the  legislature  caused  it  to 
be  published  and  circulated  among  the  people,  but  did 
not  call  a  convention  to  ratify  it.  Instead  of  this  they 
referred  the  adoption  of  it  to  the  people  in  their  town 
meetings  for  the  purpose  of  having  it  rejected.  There 
were  but  four  thousand  legal  voters  in  the  State,  and  of 
the  small  minority  who  favored  the  adoption  of  the 
Constitution  few  voted.  The  votes  against  it  were 
2,708;  those  in  favor,  232.  This  was  in  March,  1788. 
After  an  interval  of  more  than  two  years,  Rhode  Island, 
called  a  convention,  and  the  Constitution  was  ratified 
on  the  twenty-ninth  of  May,  1790. 

The  ratification  of  New  Hampshire,  which  was  the 
ninth  in  order,  was  received  by  Congress  July  2d,  1788. 
A  committee  was  appointed  on  the  same  day  to  exam 
ine  the  various  ratifications  and  report  an  act  for  put 
ting  the  Constitution  into  operation.  The  only  member 
who  voted  against  the  appointment  of  a  committee  was 
Mr.  Yates,  of  New  York,  who  left  the  Constitutional 
Convention,  and  voted  against  the  ratification  of  the 
Constitution  in  the  convention  of  New  York. 

The  committee  reported,  on  the  fourteenth  of  July,  an 
act  which  was  debated  till  the  thirteenth  of  Septem 
ber,  when  the  following  resolution  was  adopted : 

"Resolved,  that  the  first  Wednesday  in  January  next 
be  the  day  for  appointing  electors  in  the  several  States, 
which,  before  the  said  day,  shall  have  ratified  the  said 
Constitution;  that  the  first  Wednesday  in  February  next 
be  the  day  for  the  electors  to  assemble,  in  their  respect 
ive  States,  and  vote  for  a  President;  and  that  the  first 


202  THE  CONSTITUTION. 

Wednesday  in  March  next  be  the  time,  and  the  present 
seat  of  Congress  the  place,  for  commencing  proceedings 
under  the  said  Constitution." 

The  first  Wednesday  in  March  of  the  year  1789  hap 
pened  to  be,  the  fourth  day,  which  thus  became  the 
initial  day  of  our  governmental  year.  On  the  fourth 
of  March  each  new  Congress  commences  its  existence, 
and  on  this  day  the  President  is  inaugurated. 

Elections  of  Senators  and  Representatives  were  held, 
and  electors  of  President  were  appointed,  in  accordance 
with  the  act  of  Congress,  and  the  first  Congress  under 
the  Constitution  met  on  the  fourth  of  March,  1789. 
For  want  of  a  quorum  the  organization  was  not  effected 
till  the  first  of  April  in  the  House,  and  the  sixth  of 
April  in  the  Senate.  The  electoral  votes  were  then 
counted  in  the  presence  of  both  Houses. 

George  Washington  was  found  to  have  been  elected 
President  by  a  unanimous  vote  (69) ;  and  John  Adams 
was  declared  Vice-President,  as  having  the  next  highest 
number  (34),  though  it  was  less  than  a  majority.  Mr. 
Adams  took  the  chair  as  President  of  the  Senate  April 
21st,  and  General  Washington  was  inaugurated  Presi 
dent  April  30th,  1789,  in  the  city  of  New  York. 

Thus  quietly  the  government  went  into  operation 
under  the  new  Constitution.  It  was  extraordinary 
that  a  President  should  have  been  unanimously  elected, 
when  we  remember  the  great  opposition  which  the 
Constitution  encountered,  and  that  the  new  President 
had  presided  over  the  Convention  which  framed  the  in 
strument.  At  the  expiration  of  his  first  term  President 
Washington  was  again  elected  by  a  unanimous  vote ; 
fifteen  States  now  voting  while  before  there  had  been 
but  ten.  Vermont  and  Kentucky  had  been  admitted 
into  the  Union  before  the  second  Presidential  election. 
Since  the  administration  of  President  Washington,  no 
President  has  received  the  votes  of  all  the  electors. 

Those  who  had  opposed  the  Constitution  in  the  State 


ITS  SUCCESS.  293 

conventions  gave  in  their  acquiescence  when  they 
found  that  the  people  had  voted  to  ratify  it.  The 
dangers  which  had  been  feared  were  found  to  be  im 
aginary.  The  Constitution  has  proved  itself  to  be  just 
what  the  nation  needed.  Once  only  has  there  been  a 
determined  effort  to  overthrow  it.  And  this  would  not 
have  been  made  had  it  not  been  that  the  slave-hold 
ing  States  thought  their  interests  would  be  promoted 
by  a  dissolution  of  the  Union.  To  effect  this,  they 
placed  upon  the  Constitution  an  interpretation  the 
opposite  of  that  attributed  to  it  by  those  who  opposed 
its  ratification  in  1787  and  1788.  Patrick  Henry,  and 
those  who  agreed  with  him,  would  not  ratify  the  Con 
stitution  because  it  was  the  Constitution  of  a  Nation 
and  not  a  league  of  States.  In  1861  the  people  of  a 
portion  of  the  States  claimed  the  right  of  peaceable 
secession,  because,  as  they  affirmed,  the  government 
was  a  league.  Had  it  been  so  understood  when  the 
adoption  of  the  Constitution  was  under  discussion  in 
the  State  conventions  in  1788,  those  who  were  the 
most  strongly  opposed  to  it  would  have  been  the  most 
eager  to  adopt  it. 


CHAPTER    VI. 

THE  ADMISSION   OF  NEW   STATES  — THE  TERRITORIAL  GOVERNMENTS. 

At  the  birth  of  the  Nation— July  4th,  1776  — there 
were  thirteen  States;  there  are  now — 1878 — thirty-eight. 
The  Constitution  went  into  operation  when  only  eleven 
had  ratified  it ;  but  the  other  two  gave  their  ratifications 
shortly  after — North  Carolina,  November  21st  of  the 
same  year,  and  Rhode  Island  on  the  twenty-ninth  of 
May,  1790.  The  relation  of  these  two  to  the  others,  if 
they  had  refused  to  ratify,  has  been  discussed  in  a 
former  chapter  (page  261). 

Congress  has  admitted  twenty-five  new  States  into 
the  Union.  Of  these,  twelve  were  formed  from  terri 
tory  belonging  to  the  United  States,  or  to  individual 
States  when  the  Constitution  was  adopted;  and  eight 
of  the  others  came  from  the  Louisiana  purchase. 

Classifying  them  as  to  their  modes  of  admission,  four 
were  formed  from  other  States,  nineteen  existed  as  or 
ganized  Territories,  one  was  admitted  without  having 
had  a  territorial  government,  and  one  was  annexed. 

The  first  State  admitted  into  the  Union  after  the 
adoption  of  the  Constitution  was  VERMONT.  The  people 
of  Vermont,  in  January,  1777,  proclaimed  themselves  a 
free  and  independent  State,  under  the  name  of  the 
New  Hampshire  Grants.  In  December  of  that  year 
the  same  convention  which  had  proclaimed  the  inde 
pendence  of  the  State,  adopted  and  put  into  operation 
a  constitution.  But  as  the  territory  was  claimed  by 
New  York,  opposition  was  made  by  that  State  to  her 
admission  into  the  Union.  It  was  not  till  October 

(294) 


VERMONT,  KENTUCKY,  TENNESSEE.  295 

17th,  1790,  after  the  adoption  of  the  Constitution  of 
the  United  States,  that  New  York,  by  her  commis 
sioner,  consented  to  relinquish  her  claim  to  soil  and 
jurisdiction,  Vermont  paying  the  sum  of  thirty  thou 
sand  dollars.  The  formal  consent  of  New  York  was 
given  March  6th,  1790,  by  her  legislature.  Applica 
tion  was  made  by  Vermont  for  admission,  February 
9th,  1791,  and  an  act,  to  take  effect  on  the  fourth 
of  March,  was  approved  February  18th.  Vermont,  the 
first  of  the  new  States,  thus  became  an  integral  part 
of  the  Union  March  4th,  1791.  She  came  in  with  the 
constitution  which  her  convention  had  adopted  four 
teen  years  before,  and  which  has  remained  substanti 
ally  the  same  to  the  present  time. 

KENTUCKY  was  the  next  new  State;  it  was  admitted 
June  1st,  1792.  As  Vermont  was  formed  from  a  part  of 
New  York,  so  Kentucky  was  formed  from  a  part  of 
Virginia.  The  question  of  forming  a  new  State  from 
that  portion  of  Virginia  known  as  the  district  of 
Kentucky,  began  to  be  agitated  as  early  as  1784.  A 
number  of  conventions  were  held,  but  no  results  fol 
lowed  till  December  18th,  1789,  when  Virginia  passed 
an  act  giving  her  consent  to  a  separation,  to  take  place 
June  1st,  1792.  On  the  fourth  of  February,  1791,  Con 
gress,  in  answer  to  a  petition  from  a  convention  in 
Kentucky,  consented  to  her  admission,  which  was  to 
take  place  June  1st,  1792,  according  to  the  agreement 
with  Virginia. 

The  third  State  admitted  into  the  Union  was  TEN 
NESSEE,  June  1st,  1796.  This  was  originally  a  part  of 
North  Carolina.  Like  Vermont,  Tennessee  had  early 
in  the  war  with  Great  Britain  proclaimed  herself  in 
dependent;  and  she  had  set  up  a  government  in  defi 
ance  of  North  Carolina.  She  called  herself  the  State 
of  Frankland,  elected  officers,  and  attempted  to  defend 
herself  by  force  of  arms.  The  rebellion  was,  however, 
suppressed. 


296  THE   NEW  STATES. 

In  February,  1790,  North  Carolina  made  a  cession  of 
her  western  territory  to  the  United  States,  with  this, 
among  other  conditions,  "  That  the  territory  so  ceded 
shall  be  laid  out  and  formed  into  a  State  or  States, 
containing  a  suitable  extent  of  territory,  the  inhabi 
tants  of  which  shall  enjoy  all  the  privileges,  benefits, 
and  advantages,  set  forth  in  the  ordinance  of  the  late 
Congress  for  the  government  of  the  western  territory 
of  the  United  States." 

On  the  second  of  April  of  the  same  year,  Congress 
accepted  the  cession,  and,  on  the  twenty-sixth  of  May, 
passed  an  act  organizing  the  Territory.  In  July,  1795, 
the  territorial  legislature  ordered  a  census  to  be  taken 
to  ascertain  whether  the  population  amounted  to  60,000; 
this  number  entitling  the  Territory  to  admission  into 
the  Union  as  a  State,  by  the  terms  of  the  ordinance 
of  1787  and  the  deed  of  cession.  The  census  showing 
a  sufficient  population,  a  convention  was  called  to  form 
a  State  constitution.  This  body  met  in  January,  1796, 
and  on  the  sixth  of  February  adopted  a  constitution. 
A  copy  was  forwarded  to  the  President  of  the  United 
States  in  the  same  month,  with  a  notification  that  on 
the  twenty-eighth  of  March  the  territorial  government 
would  cease.  The  peculiar  action  of  Tennessee  in  de 
manding  rather  than  asking  admission  into  the  Union 
is  to  be  explained  by  her  understanding  of  the  ordi 
nance  of  1787.  A  very  earnest  debate  followed,  but 
finally  an  act  for  admission  was  passed ;  it  was  approved 
June  1st.  Tennessee  was  the  first  State  admitted  which 
had  been  previously  governed  as  a  Territory. 

There  had  been  thus  three  new  States  admitted  into 
the  Union  before  the  close  of  the  century:  Vermont, 
Kentucky,  and  Tennessee.  The  first  in  this  century 
was  OHIO,  admitted  February  19^A,  1803;  which,  though 
the  seventeenth  at  the  time  of  her  admission,  has  long 
held  the  third  rank  in  population.  The  old  States  had 
ceded  to  the  United  States  all  their  claims  of  jurisdic- 


NORTH-WEST  TERRITORY— OHIO.  297 

tion,  and,  with  a  few  exceptions,  of  soil,  to  territory 
lying  north-west  of  the  Ohio  River.  In  the  summer  of 
1787,  while  the  Convention  was  framing  the  Constitu 
tion,  at  Philadelphia,  Congress  at  New  York  passed  an 
"Ordinance  for  the  government  of  the  territory  of  the 
United  States  north-west  of  the  River  Ohio.''  This 
was  the  most  important  act  performed  by  Congress 
under  the  Articles  of  Confederation.  "  Never,  probabty, 
in  the  history  of  the  world,  did  a  measure  of  legisla 
tion  so  accurately  fulfill,  and  yet  so  mightily  exceed, 
the  anticipations  of  the  legislators."  (Chase,  Statutes 
of  Ohio.)  Its  object  was  declared  to  be  to  "  extend  the 
fundamental  principles  of  civil  and  religious  liberty 
which  form  the  basis  whereon  these  republics,  their 
laws  and  constitutions  are  erected;  to  fix  and  estab 
lish  those  principles  as  the  basis  of  all  laws,  consti 
tutions,  and  governments,  which,  forever  hereafter  shall 
be  formed  in  the  said  Territory."  (The  ordinance  in 
full  may  be  found  in  the  Appendix.) 

The  Territory  embraced  all  the  land  which  belonged 
to  the  United  States  north-west  of  the  Ohio  River,  and 
all  to  which  Great  Britain  had  any  claim  at  the  time 
of  the  treaty  of  1783.  It  extended  from  Pennsylvania 
to  the  Mississippi,  and  from  the  Ohio  to  the  great 
lakes.  The  ordinance  provided  for  its  division  into 
three  States;  or  five,  if  the  people  should  prefer.  Five 
States  have  been  organized :  Ohio,  Indiana,  Illinois, 
Michigan,  and  Wisconsin.  The  territorial  government 
was  organized  soon  after  the  passage  of  the  ordinance. 
The  government  was  vested  in  a  Governor  and  Judges; 
but  when  there  should  be  5,000  free  males  of  full  age, 
a  territorial  legislature  might  be  elected.  The  first 
Governor  was  General  Arthur  St.  Clair,  who  was  Presi 
dent  of  Congress  when  elected.  He  entered  upon  his 
duties  in  1788  at  Marietta.  The  first  territorial  legisla 
ture  met  at  Cincinnati  September  16th,  1799. 

In  May,  1800,  the  Territory  was  divided;  the  western 


298  THE  NEW   STATES. 

portion  being  called  the  Territory  of  Indiana,  of  which 
W.  H.  Harrison,  afterward  President,  was  made  Gov 
ernor.  April  30th,  1802,  Congress  passed  an  act  to  ena 
ble  the  people  of  the  eastern  division  to  form  a  consti 
tution  and  State  government.  The  convention  met  at 
Chillicothe,  November  1st,  framed  a  constitution,  and 
adjourned  on  the  29th.  The  constitution  was  not  sub 
mitted  to  the  people.  There  was  no  formal  act  admit 
ting  Ohio,  but  February  19,  1803,  when  Congress  recog 
nized  the  new  State,  is  taken  as  the  date  of  admission. 

LOUISIANA  came  next  into  the  Union,  April  30$., 
1812.  About  the  time  Ohio  was  admitted,  a  treaty  was 
made  with  France,  in  which  that  power  ceded  to  the 
United  States  the  vast  territory  known  then  as  Louisi 
ana,  lying  mainly  on  the  west  of  the  Mississippi  River. 
By  tliis  purchase  the  area  of  the  United  States  was 
more  than  doubled.  From  it  the  following  States  have 
already  been  formed:  Louisiana,  Arkansas,  Missouri, 
Kansas,  Nebraska,  Iowa,  Minnesota,  Oregon,  and  a  large 
part  of  Colorado. 

The  treaty  with  France  was  made  April  30th,  1803. 
A  temporary  government  was  provided  the  same  year, 
and,  on  March  26th,  1804,  Congress  divided  the  region 
into  two  territories — the  Territory  of  Orleans  and  the 
District  of  Louisiana.  March  2d,  1805,  an  act  was 
passed  authorizing  a  constitution  and  State  government 
in  the  Territory  of  Orleans,  when  its  free  inhabitants 
should  number  "60,000.  On  the  20th  of  February,  1811, 
an  act  was  passed  to  enable  the  people  to  form  a  consti 
tution  and  State  government.  This  was  done  January 
22d,  1812,  and  the  State  was  admitted  into  the  Union 
by  act  of  Congress,  April  8th,  1812,  to  take  effect  April 
30th  of  that  year. 

INDIANA,  formed  from  a  part  of  the  North-west  Ter 
ritory,  was  admitted  December  llth,  1816.  The  Territory 
of  Indiana,  formed  May  7th,  1800,  was  divided  January 
llth,  1805,  and  the  Territory  of  Michigan  established. 


MISSISSIPPI,  ILLINOIS,  ALABAMA.  299 

It  was  again  divided,  February  3d,  1809,  and  the  Ter 
ritory  of  Illinois  established.  The  people  having  ap 
plied  for  admission  into  the  Union,  an  enabling  act  was 
passed  by  Congress,  April  19th,  1816.  and  a  constitution 
was  formed  June  29th.  A  joint  resolution  admitting 
Indiana  into  the  Union  was  approved  December  llth, 
1816. 

MISSISSIPPI,  formed  from  territory  ceded  by  South 
Carolina,  August  9th,  1787,  and  by  Georgia,  April  24th, 
1802,  was  admitted  December  10th,  1817.  Congress  estab 
lished  the  territorial  government  April  7th,  1798.  An 
act  to  enable  the  people  of  the  western  part  of  the  Mis- 
issippi  Territory  to  form  a  constitution  and  State  gov 
ernment  was  passed  March  1st,  1817.  A  constitution 
was  formed  August  15th,  1817,  and  the  State  admitted 
by  act  of  Congress  December  10th,  1817. 

ILLINOIS  was  formed  from  the  North-west  Territory, 
and  admitted  December  3d,  1818.  The  Territory  of  Illi 
nois  was  established  February  3d,  1809.  A  memorial 
of  the  legislative  council  to  be  allowed  to  form  a  State 
government  having  been  presented  to  the  House  of 
Representatives  in  January,  1818,  an  enabling  act  was 
passed  April  18th.  The  constitution  was  formed  Au 
gust  26th,  and  the  State  was  admitted  by  joint  resolu 
tion  December  3d,  1818. 

ALABAMA,  formed  from  a  part  of  the  territory  ceded 
to  the  United  States  by  South  Carolina  and  Georgia, 
was  admitted  December  14M,  1819.  The  eastern  part  of 
Mississippi  Territory  was  made  a  separate  territory,  un 
der  the  name  of  Alabama,  by  act  of  Congress,  March  3d, 
1817.  Congress,  having  been  memorialized,  passed  an 
enabling  act  March  2d,  1819,  and  a  constitution  and 
State  government  were  formed  August  2d,  1819.  The 
State  was  admitted  by  joint  resolution  December  14th, 
1819. 

MAINE  was  formed  from  a  part  of  Massachusetts,  and 
became  a  State  March  15th,  1820.  A  project  was  enter- 


300  THE  NEW  STATES. 

tained  as  early  as  1786  to  erect  a  separate  State  from 
that  part  of  Massachusetts  known  as  the  district  of 
Maine,  and  a  convention  had  once  met  at  Portland  to 
consider  it.  It  was,  however,  abandoned  for  the  time. 
On  the  nineteenth  of  June,  1819,  the  legislature  of 
Massachusetts  gave  their  consent  to  the  formation  of 
a  new  State,  if  the  people  of  the  district  desired  it, 
and  would  consent  to  certain  conditions.  This  having 
been  done,  a  convention  formed  a  constitution,  October 
29th,  which  was  ratified  by  the  people  December  6th. 
A  petition  was  then  presented  to  Congress,  and  the 
State  admitted  by  an  act  passed  March  3d,  1820,  to 
take  effect  March  15th,  1820. 

This  was  the  third  State  formed  from  a  part  of  an 
other.  The  others,  Vermont  and  Kentucky,  were  ad 
mitted,  with  two  Representatives  each;  but  Maine  was 
declared  to  be  entitled  to  seven,  Massachusetts  having 
thirteen  —  Massachusetts  had  twenty  before.  The  new 
States  which  had  previously  been  Territories  had  each 
but  one  till  the  next  census  after  their  admission. 

MISSOURI,  formed  from  the  Louisiana  purchase,  was 
admitted  Augmt  10^,  1821.  As  before  stated,  the  act 
of  March  26th,  1804,  divided  the  territory  purchased 
from  France,  known  as  the  Louisiana  purchase,  into 
two  Territories.  What  is  now  the  State  of  Missouri, 
was  a  part  of  the  northern  territory  which  was  called 
the  district  of  Louisiana.  For  about  a  year  this  was 
under  the  Governor  and  Judges  of  Indiana  Territory. 
On  the  third  of  March,  1805,  a  separate  government  was 
provided,  and  the  name  changed  to  that  of  Territory 
of  Louisiana.  On  the  fourth  of  June,  1812,  the  name 
was  changed  to  that  of  Missouri  Territory.  March  2d, 
1819,  the  southern- part  was  separated  and  erected  into 
a  new  Territory,  called  Arkansas  Territory.  Congress 
having  been  memorialized  to  admit  Missouri  as  a  State 
into  the  Union,  an  act  was  passed  March  6th,  1820, 
authorizing  the  formation  of  a  constitution  and  State 


MISSOURI,  ARKANSAS.  30l 

government.  In  this  enabling  act  it  was  provided 
"That  in  all  that  territory  ceded  by  France  to  the 
United  States,  under  the  name  of  Louisiana,  which 
lies  north  of  36°  30'  north  latitude,  not  included  within 
the  limits  of  the  State  contemplated  by  this  act,  slavery 
and  involuntary  servitude,  otherwise  than  in  the  pun 
ishment  of  crime,  whereof  the  parties  shall  have  been 
duly  convicted,  shall  be,  and  is  hereby,  forever  pro 
hibited." 

On  the  nineteenth  of  July  the  people  formed  a  con 
stitution,  which  was  laid  before  Congress  November  16th. 
March  2d,  1821,  a  resolution  providing  for  the  admission 
of  Missouri  into  the  Union  on  a  certain  condition  was 
approved.  The  condition  having  been  accepted  June 
26th,  1821,  the  President  issued  a  proclamation,  August 
10th.  1821,  declaring  the  admission  complete. 

ARKANSAS,  formed  out  of  part  of  the  territory  ceded 
by  France  in  1803,  was  admitted  June  15th,  1836. 

The  Territory  of  Arkansas  was  established  March  2d, 
1819,  having  been  taken  from  the  Territory  of  Missouri. 
On  the  thirtieth  of  January,  1836,  a  constitution  was 
formed  by  a  convention,  and  this  was  laid  before  Con 
gress  March  1st,  with  a  memorial,  asking  admission 
into  the  Union.  An  act  to  admit  was  approved  June 
15th,  1836.  There  was  no  enabling  act  passed  by  Con 
gress  in  the  case  of  Arkansas.  All  the  States  admitted 
up  to  this  time  that  had  existed  as  Territories,  except 
Tennessee,  were  authorized  by  Congress  to  form  consti 
tutions  and  State  governments.  Tennessee  claimed  the 
right  of  admission  under  the  deed  of  cession  from  North 
Carolina  to  the  United  States ;  and  Arkansas  claimed  a 
like  right,  by  virtue  of  the  treaty  of  cession  by  France 
to  the  United  States  of  the  Province  of  Louisiana.  This 
treaty  provided  that  "The  inhabitants  of  the  ceded 
territory  shall  be  incorporated  in  the  Union  of  the 
United  States  and  admitted  as  soon  as  possible,  accord 
ing  to  the  principles  of  the  Federal  Constitution,  to  the 


302  THE  NEW  STATES. 

enjoyment  of  all  the  rights,  advantages,  and  immuni 
ties  of  citizens  of  the  United  States."  It  has  been  held 
by  legal  writers  that  the  action  of  these  Territories  in 
forming  constitutions  and  State  governments  without 
authority  from  Congress  was  irregular,  and  that  Con 
gress  was  not  required  to  admit  them  at  the  time  of 
application. 

MICHIGAN,  formed  from  the  North-west  Territory,  was 
admitted  January  26^,  1837. 

The  Territory  of  Indiana  was   divided  into  two,  and 
that  of  Michigan  established  January  llth,  1805.     The 
legislative   council,  in   accordance  with    a   vote  of  the 
people,    having    memorialized    Congress    for    admission 
into  the  Union,  a  bill  was  reported  as  an  enabling  act 
for  that  purpose  February,  1833;  but,  on  account  of  the 
dispute  between  Ohio  and  Michigan  as  to  boundaries, 
it  was  not   passed.     On  the  sixth  of  September,  1834, 
the    legislative    council   of    the   Territory  provided  for 
taking  the  census,  and,  afterward,  for  forming  a  con 
stitution.      This   constitution   having   been   ratified  by 
the  people  October  5th,  1835,  a  State  government  was 
organized.     A  copy  of  the  constitution  was   then  sent 
to  the  President  with  a  request  for  admission  into  the 
Union.    As  the  southern  boundary  which  Michigan  had 
given   in   her  constitution  was   south  of  the    northern 
boundary  of  Ohio,  she  could  not  of  course  be  received 
without  a  change.      Strong  opposition  was  made  to  re 
ceiving  her  at  all  without  an  enabling  act;  but  finally 
an  act  of  admission  was  passed,  June  15th,  1836,  admit 
ting  her  on  the  condition  that  a  convention  of  delegates, 
elected  by  the  people,  should  assent  to  the  boundaries 
prescribed  by  Congress.    This  was  done  December  15th, 
1836,  and  the  State  wras   admitted  by  act  of  Congress, 
approved  January  26th,  1837. 

FLORIDA  was  formed  out  of  the  territory  ceded  by 
Spain  to  the  United  States  by  treaty  of  February  22d, 
1819.  It  was  admitted  into  the  Union  March  3d-,  1845. 


FLORIDA,  TEXAS.  303 

A  territorial  government  was  established,  by  act  of  Con 
gress,  March  30th,  1822.  No  enabling  act  was  passed  in 
the  case  of  Florida.  The  convention  which  framed  her 
constitution  was  called  by  the  legislature  of  the  Terri 
tory.  She  based  her  right  to  admission  on  the  treaty 
with  Spain,  as  Michigan  had  based  hers  on  the  ordi 
nance  of  1787,  and  Tennessee  hers  on  the  deed  of  ces 
sion  from  North  Carolina.  She  applied  for  admission  in 
February,  1839,  presenting  the  proceedings  of  her  con 
vention,  a  constitution,  etc.,  but  she  was  not  admitted 
till  March  3d,  1845,  as  stated  above. 

The  next  State  admitted  was  TEXAS,  which  came  in 
by  a  joint  resolution  of  Congress,  approved  December 
29^/j,  1845.  Texas,  originally  a  part  of  Mexico,  had 
become  an  independent  republic.  She  applied  for  ad 
mission  into  the  Union  as  a  State,  and  a  joint  reso 
lution  for  annexing  Texas  to  the  United  States  was 
approved  March  1st,  1845.  This  resolution  authorized 
the  admission  of  Texas  on  certain  conditions  and  guar 
anties,  requiring  the  action  of  the  people  of  that  republic ; 
or  the  President  of  the  United  States  might  negotiate 
with  Texas,  and  it  might  be  admitted  by  treaty.  The 
former  method  was  adopted;  and  the  required  condi 
tions  and  guaranties  having  been  assented  to,  a  joint 
resolution  for  the  admission  of  Texas  into  the  Union  on 
an  equal  footing  with  the  original  States  was  approved 
December  29th,  1845.  One  of  the  conditions  was  that 
new  States,  not  exceeding  four  in  number,  might  sub 
sequently,  by  the  consent  of  the  State,  be  formed  out 
of  the  territory  and  entitled  to  admission  into  the 
Union.  "And  such  States  as  may  be  formed  out  of 
that  portion  of  said  territory  lying  south  of  36°  30'  N., 
commonly  known  as  the  Missouri  Compromise  line, 
shall  be  admitted  into  the  Union  with  or  without 
slavery,  as  the  people  of  each  State  asking  admission 
may  desire.  And  in  such  State  or  States  as  shall  be 
formed  out  of  said  territory  north  of  said  Missouri 


304  THE  NEW  STATES. 

Compromise  line,  slavery  or  involuntary  servitude  (ex 
cept  for  crimes)  shall  be  prohibited."  Two  Represent 
atives  in  Congress  were  allowed. 

The  case  of  Texas  differs  from  all  others  in  this,  that 
until  it  became  a  State  its  people  were  in  no  respect 
subject  to  the  government  of  the  United  States. 

IOWA  was  the  next  of  the  new  States  admitted.  Iowa 
was  admitted  December  28th,  1846,  and  was  formed  from 
a  part  of  the  Louisiana  purchase.  Confusion  has  arisen 
as  to  the  origin  of  this  State,  and  some  writers  repre 
sent  it  as  having  been  formed  from  the  original  terri 
tory  of  the  United  States.  This  confusion  is  owing  to 
the  fact  that  the  Territory  of  Iowa  was  formed  from 
that  of  Wisconsin,  and  this  from  that  of  Michigan;  and 
as  Michigan  and  Wisconsin  were  both  formed  from  the 
North-west  Territory,  the  inference  was  natural  that 
Iowa  was  also  formed  from  that  territory. 

Prior  to  the  purchase  of  Louisiana,  in  1803,  the  United 
States  owned  no  territory  west  of  the  Mississippi.  The 
North-west  Territory,  organized  by  the  ordinance  of  1787, 
embraced  the  territory  north-west  of  the  Ohio  and  east 
of  the  Mississippi.  This  territory  was  divided  in  1800, 
and  the  western  part  was  called  the  Territory  of  Indi 
ana.  In  1805  the  Territory  of  Michigan  was  established, 
and  in  1809  that  of  Illinois.  The  Territory  of  Michi 
gan,  at  that  time,  included  the  territory  north  of  Ohio, 
Indiana,  and  Illinois,  and  east  of  the  Mississippi.  But, 
on  the  twenty-eighth  of  June,  1834,  an  act  of  Congress 
attached  to  the  Territory  of  Michigan  all  the  territory 
of  the  United  States  west  of  the  Mississippi,  and  north 
of  the  State  of  Missouri.  This,  of  course,  included  what 
is  now  Iowa.  On  the  twentieth  of  April,  1836,  the  terri 
torial  government  of  Wisconsin  was  established.  Iowa 
thus  became  a  part  of  the  Territory  of  Wisconsin.  This 
Territory  was  divided,  and  the  new  Territory  of  Iowa 
was  established  on  the  twelfth  of  June,  1838. 

No  enabling   act   was    ever   passed   by   Congress   for 


IOWA,  WISCONSIN.  305 

Iowa.  In  February,  1841,  a  bill  to  that  effect  was  re 
ported  to  the  House  of  Representatives,  but  it  was  not 
passed.  Three  years  after  —  February  12th,  1844  — the 
President  communicated  to  the  Senate  a  memorial  from 
the  legislative  assembly  for  admission  into  the  Union. 
And  on  December  9th,  of  the  same  year  a  memorial  of 
a  convention  —  October  7th  to  November  1st— with  a 
copy  of  a  constitution,  was  received  in  the  Senate. 

On  the  third  of  March,  1845,  an  act  for  the  admission 
of  Iowa  was  approved.  This  act  required  the  assent  of 
the  people  of  Iowa  to  be  given,  after  which  the  Presi 
dent  might,  by  proclamation,  announce  the  admission 
without  further  action  on  the  part  of  Congress.  This 
course,  however,  was  not  adopted.  On  the  eighteenth 
of  May,  1846,  another  constitution  was  formed  by  a 
convention  of  delegates  elected  for  that  purpose,  copies 
of  which  were  presented  to  the  Senate  June  10th,  and 
to  the  House  July  6th.  On  this  second  constitution, 
which  Congress  approved  as  republican,  the  act  of  final 
admission  was  passed,  December  28th.  1846.  Iowa  was 
allowed  two  Representatives. 

WISCONSIN  was  admitted  May  2$th,  1848.  This  State 
was  formed  from  the  North-west  Territory,  making  the 
fifth  State,  and  thus  completing  the  number  provided 
for  in  the  ordinance  of  1787.  The  others,  as  we  have 
seen,  are  Ohio,  Indiana,  Illinois,  and  Michigan. 

The  Territory  of  Wisconsin  was  established  April 
20th,  1836,  having  been  formed  from  that  of  Michigan. 
On  the  twentieth  of  March,  1845,  a  resolution  of  the 
legislative  council  of  Wisconsin,  asking  that  provis 
ion  be  made  for  taking  a  census  and  holding  a  con 
vention  to  form  a  State  constitution,  was  presented  in 
the  Senate.  An  enabling  act  was  approved  August  6th, 
1846.  A  State  constitution  was  formed  December  16th, 
1846,  and  in  January  it  was  presented  in  Congress.  On 
the  third  of  March,  1847,  an  act  for  the  admission  of 
Wisconsin  was  passed;  the  admission  to  be  on  the 

C.  G.  26. 


306  THE  NEW  STATES. 

condition  of  the  assent  of  the  qualified  voters  to  the 
constitution.  The  President  was  to  announce  the  as 
sent  by  proclamation,  and  then  the  admission  was  to 
be  complete. 

But,  as  in  the  case  of  Iowa,  this  plan  was  not  carried 
out.  The  constitution  was  rejected  by  the  people  in 
1847,  and  another  convention  was  held  and  another 
constitution  was  adopted  February  1st,  1848.  This 
was  ratified  by  the  people.  The  preamble  of  the  act 
of  admission,  approved  May  29th,  1848,  recognized  this 
constitution  as  republican,  making  it  thus  the  basis 
of  admission.  The  boundaries  of  the  State  were  the 
same  as  prescribed  in  the  enabling  act  of  August  6th, 
1846.  This  act  gave  the  State  two  Representatives  till 
the  next  census,  but  the  act  of  admission  provided  for 
three  from  and  after  March  4th,  1849. 

CALIFORNIA  was  admitted  into  the  Union  September 
9?A,  1850.  It  was  formed  from  a  part  of  the  territory 
ceded  to  the  United  States  by  Mexico  in  the  treaty 
made  at  Guadalupe  Hidalgo,  February  2d,  1848.  By 
this  treaty  the  United  States  obtained,  besides  Cali 
fornia,  what  is  now  the  State  of  Nevada,  and  the 
Territories  of  Utah,  New  Mexico,  and  Arizona,  and 
portions  of  Colorado  and  Wyoming.  California  never 
had  a  territorial  government.  Most  of  the  New  States 
existed  previously  as  Territories;  four  —  Maine,  Ver 
mont,  Kentucky,  and  West  Virginia — were  formed  from 
parts  of  other  States;  one  —  Texas — was  an  independ 
ent  republic,  and  was  annexed  to  the  United  States 
by  joint  resolution  of  Congress.  California  differed 
from  all  the  rest  in  her  previous  condition.  Efforts 
were  made  in  Congress  to  pass  acts  to  establish  a 
territorial  government,  but  they  all  failed. 

A  convention  was  called  by  General  Riley,  the  mili 
tary  governor,  which,  on  the  thirteenth  of  October,  1849, 
formed  a  constitution.  This  was  ratified  by  the  people 
on  the  thirteenth  of  November,  and  the  State  was 


MINNESOTA,  OREGON.  307 

admitted   September   9th,  1850.     Two  Representatives 
were  allowed  her. 

MINNESOTA  was  admitted  May  llth,  1858.  This  State, 
lying  on  both  sides  of  the  Mississippi  River,  was  formed 
in  part  from  the  Louisiana  purchase  and  in  part  from 
the  North-west  Territory.  A  territorial  government  was 
established  March  3d,  1849.  On  the  twenty-sixth  of 
February,  1857,  Congress  authorized  the  people  of  the 
Territory  to  form  a  constitution  and  State  govern 
ment,  preparatory  to  their  admission  into  the  Union. 
A  convention  was  held  accordingly,  and  a  constitution 
formed  August  29th,  which  was  ratified  by  the  people 
October  13th. 

"The  two  political  parties  in  the  convention,  Repub 
licans  and  Democrats,  disagreeing  as  to  the  organization 
of  the  body,  formed  separate  conventions,  which  ran 
parallel  courses,  each  claiming  to  be  the  only  legitimate 
convention.  Two  constitutions  were  reported,  and  it 
seemed  that  the  people  were  to  be  embarrassed  by  the 
necessity  of  choosing  between  them,  when,  towards  the 
close  of  their  respective  sessions,  a  conference  was  had 
between  the  two  bodies,  and  a  single  constitution  re 
ported  to  and  adopted  by  them  both.  It  seems  clear 
that  this  mode  of  organizing  has  decided  advantages. 
A  constitution  acceptable  to  all  political  parties  in  a 
State  must  be  free  from  partisan  legislation;  must 
contain,  as  it  ought,  only  measures  whose  policy  or 
expediency  had  been  thoroughly  settled  in  the  public 
mind."  (Jameson,  p.  263.) 

This  constitution  was  approved  by  Congress,  and  the 
State  was  admitted  May  llth,  1858,  with  two  Repre 
sentatives. 

OREGON  was  admitted  February  14th,  1859.  Some 
deem  it  a  part  of  the  Louisiana  purchase,  but  that 
province  is  believed  to  have  embraced  only  the  Missis 
sippi  valley.  Others  regard  the  Oregon  country  as  hav 
ing  become  ours  by  the  discovery  of  the  Columbia 


308  THE  NEW  STATES. 

River.  There  was  a  conflict  of  claims  in  regard  to  it; 
but  in  1819  Spain  relinquished  to  us  her  claim  to  all 
north  of  the  42d  parallel,  and  in  1846  Great  Britain  did 
the  same  as  to  all  south  of  the  49th  parallel.  There  is 
.  thus  a  fourfold  title  :  the  right  hy  discovery,  and  by 
cessions  from  France,  Spain,  and  Great  Britain.  An 
act  of  Congress  passed  August  14,  1848,  established  a 
territorial  government,  over  "  that  part  of  the  territory 
of  the  United  States  which  lies  west  of  the  summit  of 
the  Rocky  Mountains,  north  of  the  42d  degree  of  north 
latitude."  The  northern  part  was  erected  into  the  Ter 
ritory  of  Washington  March  2d,  1853. 

A  convention  was  called  by  the  legislature  of  the 
Territory  to  meet  in  August,  1857,  and  in  September  a 
constitution  was  formed,  which  was  submitted  to  the 
people  for  ratification,  and  approved.  No  enabling  act 
had  been  passed  by  Congress  in  her  case.  She  was  de 
clared  entitled  to  one  Representative. 

KANSAS  was  admitted  January  29^,  1861.  It  was 
formed  from  a  part  of  the  Louisiana  purchase.  It  was 
organized  as  a  Territory  May  30th,  j.v'54,  by  the  act 
known  as  the  Kansas-Nebraska  Act  —  the  two  Terri 
tories  being  established  by  the  same  act.  This  act 
caused  great  excitement  throughout  the  country.  The 
"Missouri  Compromise"  of  1820  provided  that  there 
should  be  no  more  slave  States  north  of  the  parallel  of 
36°  30'.  This  had  been  re-affirmed  in  the  joint  resolu 
tion  of  March  1st,  1845,  for  annexing  Texas,  and  again 
in  the  act  defining  the  boundaries  of  Texas  and  estab 
lishing  the  Territory  of  New  Mexico,  passed  Septem 
ber  9th,  1850. 

Kansas  and  Nebraska  were  both  north  of  the  parallel 
of  36°  30';  but  the  act  by  which  they  were  organized 
as  Territories  provided  that  when  they  should  be  ad 
mitted  as  States  into  the  Union  they  should  be  re 
ceived,  with  or  without  slavery,  as  their  constitutions 
might  prescribe  at  the  time  of  their  admission.  The 


KANSAS,  WEST  VIRGINIA.  309 

same  act  declared  the  Missouri  Compromise  inoperative 
and  void. 

On  the  twenty-third  of  October,  1855,  a  convention 
at  Topeka  formed  a  constitution.  This  was  a  sponta 
neous  movement  on  the  part  of  those  known  as  the 
Free  State  party,  not  having  been  called  either  by  the 
Governor  or  the  territorial  legislature.  The  constitu 
tion  was  submitted  to  the  people  and  ratified  by  a  large 
majority  of  those  who  voted — the  other  party  not  vot 
ing.  Under  this  constitution  an  election  of  State  offi 
cers  was  held  January  15th,  1856,  and  a  State  govern 
ment  organized.  President  Pierce  issued  a  proclamation 
against  this  government  in  February,  and  on  the  fourth 
of  July  the  legislature  was  forcibly  dispersed  by  an 
officer  of  the  United  States  army. 

The  territorial  legislature  also  provided  for  a  conven 
tion,  which  assembled  at  Lecompton,  September  5th, 
1857,  and  framed  the  constitution  known  as  the  Lecomp 
ton  constitution.  This  established  slavery.  Applica 
tion  for  admission  into  the  Union  was  then  made,  but 
the  bill  was  not  Biassed  as  introduced.  A  bill  for  condi 
tional  admission  was  passed  May  4th,  1858,  which  re 
quired  that  the  constitution,  with  certain  propositions 
from  Congress,  should  be  submitted  to  the  people.  This 
was  done  on  the  third  of  August  of  that  year,  when  the 
constitution  was  rejected  by  ten  thousand  majority. 

Another  convention  was  held  at  Wyandotte,  and  a 
constitution  was  formed  in  July,  1859.  This  was  sub 
mitted  to  the  people  October  4th,  and  ratified  by  a  ma 
jority  of  four  thousand.  Under  this  constitution  Kansas 
was  admitted  into  the  Union,  January  29th,  1861.  She 
was  declared  to  be  entitled  to  one  Representative. 

WEST  VIRGINIA  was  admitted  into  the  Union  June 
2(M,  1863.  It  was  formed  from  a  part  of  Virginia. 
The  circumstances  of  the  formation  of  this  new  State 
were  peculiar.  On  the  seventeenth  of  April,  1861,  a 
body  of  men,  styling  themselves  the  convention  of  Vir- 


310  THE  NEW  STATES. 

ginia,  passed  an  ordinance  of  secession  from  the  United 
States.  Most  of  the  State  officers  joined  the  rebels, 
carrying  with  them  the  public  funds  and  the  archives 
of  the  State.  The  territory  was  still  a  part  of  the  na 
tional  domain,  though  most  of  it  was  in  possession  of 
the  rebels.  The  loyal  people,  whom  alone  the  Constitu 
tion  or  government  of  the  United  States  could  recognize 
as  the  people  of  Virginia,  were  without  a  State  govern 
ment.  In  this  exigency  they  took  the  reconstruction 
of  the  State  government  into  their  own  hands.  They 
called  a  convention,  which  met  at  Wheeling,  June  13th, 
1861,  and  passed  an  ordinance  providing  for  the  ap 
pointment  of  a  Governor  and  other  State  officers,  and 
requiring  the  general  assembly  to  meet  July  1st.  This 
convention  also  passed  an  ordinance  to  provide  for  the 
formation  of  a  new  State  out  of  a  portion  of  the  territory 
of  Virginia.  The  people  within  the  prescribed  bounda 
ries  were  to  vote  on  the  question  of  a  new  State,  and 
polls  were  also  opened  for  the  election  of  delegates  to  a 
convention  to  form  a  constitution.  The  vote  having 
been  largely  in  favor  of  a  new  State,  the  convention 
met  at  Wheeling,  November  26th,  and  framed  a  con 
stitution  which  was  adopted  by  the  people. 

May  13th,  1862,  the  legislature  of  Virginia  gave  con 
sent  to  the  formation  of  a  new  State.  December  31st, 
Congress  passed  an  act  admitting  West  Virginia,  pro 
vided  the  people  should  ratify  a  proposed  change  in  the 
constitution.  That  being  done,  the  President  was  to 
issue  a  proclamation,  and  the  admission  was  to  be  com 
plete  sixty  days  after  the  proclamation.  The  conven 
tion  adopted  the  change  February  17th,  1863.  The 
vote  of  the  people  on  the  ratification  of  the  amended 
constitution  was  taken  March  26th,  1863,  being  largely 
.in  favor.  On  the  twentieth  of  April,  the  proclamation 
was  issued,  and  sixty  days  thereafter — June  20M,  1863— 
West  Virginia  became  one  of  the  United  States.  She 
was  allowed  three  Representatives. 


NEVADA,  NEBRASKA.  311 

In  this  case  there  was  the  consent  of  three  parties— 
the  State  from  which  the  new  State  was  formed,  Con 
gress,  and  the  people  of  the  district  set  off.  If  it  were 
doubted  whether  the  body  that  met  at  Wheeling  in 
July,  1861,  was  the  general  assembly  of  Virginia,  the 
action  of  the  United  States  Government  in  all  its  de 
partments  must  be  deemed  conclusive. 

NEVADA  was  admitted  into  the  Union  October  31s£, 
1804,  by  the  proclamation  of  the  President.  It  was 
formed  from  a  part  of  the  territory  obtained  from 
Mexico  by  the  treaty  of  February  2d,  1848.  It  was 
organized  as  a  Territory  March  2d,  1861.  In  1863  a 
constitution  was  formed  and  submitted  to  the  people, 
but  rejected.  On  the  twenty-first  of  March,  1864,  an 
enabling  act  was  passed  by  Congress,  which  provided 
for  the  holding  of  a  convention  on  the  first  Monday 
of  July.  If  a  constitution  should  be  framed,  it  was  to 
be  submitted  to  the  people  on  the  second  Tuesday  of 
October.  The  President  of  the  United  States,  on  being 
certified  that  such  constitution  had  been  ratified  by 
the  people,  was  to  issue  his  proclamation,  admitting  it 
without  further  act  of  Congress.  This  was  done  October 
31st,  1864.  It  was  to  have  one  Representative. 

NEBRASKA  was  admitted  March  1st,  1867.  This  is  a 
part  of  the  Louisiana  purchase.  It  was  organized  as  a 
Territory  May  ^Oth,  1854.  An  enabling  act  was  passed 
for  it  April  19th,  1864.  In  January,  1867,  Congress 
passed  an  act  approving  its  constitution,  and  admitting 
it  on  condition  that  there  should  be  no  denial  of  the 
elective  franchise  or  of  other  rights  because  of  race  or 
color.  The  act,  though  vetoed  by  President  Johnson, 
became  a  law.  The  conditions  were  fulfilled,  and  it  be 
came  a  State  by  proclamation  of  the  President  March 
1st,  1867.  It  had  one  Representative. 

COLORADO  became  a  State  August  ls£,  1876.  A  part  of 
it  came  from  Louisiana  and  a  part  from  the  territory 
acquired  from  Mexico.  It  was  organized  as  a  Territory 


312  THE   NEW  STATES. 

February  28th,  1861.  A  bill  to  admit  it  as  a  State  was 
passed  in  January,  1867,  but  was  vetoed  by  the  Presi 
dent.  An  enabling  act  was  passed  March  3d,  1875,  and 
a  Constitution  was  formed.  This  was  ratified  by  the 
people  in  July,  1876,  and  the  President  was  duly  certi 
fied  thereof.  It  then,  by  the  terms  of  the  enabling  act, 
became  his  duty  to  declare  the  State  admitted  into  the 
Union  "without  any  farther  action  whatever  on  the 
part  of  Congress."  It  came  in  with  one  Representative. 

The  thirty-eight  States  may  be  arranged,  with  regard 
to  their  origin,  as  follows:  Original  States,  thirteen  — 
New  Hampshire,  Massachusetts,  Connecticut,  Rhode 
Island,  New  York,  New  Jersey,  Pennsylvania,  Delaware, 
Maryland,  Virginia,  North  Carolina.  South  Carolina, 
Georgia.  States  formed  from  territory  originally  be 
longing  to  the  States,  twelve — Vermont,  Maine,  Ken 
tucky,  Tennessee,  Mississippi,  Alabama,  Ohio,  Indiana, 
Illinois,  Michigan,  Wisconsin,  West  Virginia.  States 
formed  from  territory  purchased  by  the  United  States, 
eight — Florida,  Louisiana,  Arkansas,  Missouri.  Kansas, 
Nebraska,  Iowa,  Minnesota.  States  from  conquered  ter 
ritory,  toco— California,  Nevada;  from  discovery  and  ces 
sion,  one— Oregon;  of  mixed  origin,  one — Colorado;  ex 
isting  before  as  an  independent  republic,  one — Texas. 

Arranged  according  to  the  mode  of  admission,  the  new 
States  would  be  grouped  as  follows :  Four  were  formed 
from  other  States — Vermont,  Maine,  Kentucky,  West 
Virginia.  One  had  no  previous  territorial  government 
— California.  One  was  annexed — Texas.  The  remain 
ing  nineteen  had  been  organized  as  Territories  prior  to 
their  admission  as  States. 

There  are  eight  organized  Territories.  Washington 
and  Idaho  are  a  part  of  the  Oregon  territory.  Dakota 
belonged  to  the  province  of  Louisiana.  Arizona,  New 
Mexico,  and  Utah  are  part  of  the  territory  acquired 
from  Mexico  in  1848  and  1853.  Montana  is  chiefly 
from  Louisiana,  that  part  west  of  the  Rocky  Mountains 


THE  TERRITORIES.  313 

being  originally  a  part  of  Oregon.  Wyoming  has  its 
larger  part  from  Louisiana,  with  smaller  portions  from 
Oregon  and  Mexico. 

The  Executive  power  of  a  Territory  is  vested  in  a 
Governor;  the  Legislative,  in  the  Governor  and  Legis 
lative  Assembly;  and  the  Judicial,  in  a  Supreme  Court, 
District  Courts,  Probate  Courts,  and  Justices  of  the 
Peace.  The  Governor,  Secretary,  Chief  Justice  and  two 
Associate  Justices,  Attorney,  and  Marshal,  are  appointed 
by  the  President,  with  the  advice  and  consent  of  the 
Senate,  for  four  years,  unless  sooner  removed  by  the 
President,  with  the  consent  of  the  Senate.  The  Legis 
lative  Assembly  consists  of  a  Council  and  House  of 
Representatives.  These  are  elected  by  the  people  — 
the  former  for  two  years,  the  latter  for  one  year.  The 
Governor  has  the  power  to  veto  bills,  modified  as  in 
the  case  of  the  President. 

The  ofncers  of  the  Territories  are  paid  from  the 
treasury  of  the  United  States.  The  Governor  receives 
$2600  a  year;  the  Secretary,  $1800;  the  Judges  of  the 
Supreme  Court,  who  also  hold  the  District  Courts,  $2600 
each;  the  Attorney  and  Marshal  are  paid  by  fees;  the 
members  of  the  Assembly,  $6.00  a  day  for  forty  days,  and 
$3.00  for  each  twenty  miles  of  travel ;  the  President  of  the 
Council  and  the  Speaker  of  the  House.  $10.00  a  day. 

In  addition  to  the  States  and  Territories  mentioned 
above,  the  United  States  includes  the  unorganized 
Territory  of  Alaska,  purchased  from  Russia  in  1867, 
containing  577,390  square  miles;  and  the  Indian  coun 
try  lying  west  of  Arkansas,  which,  with  some  ten  thou 
sand  square  miles  of  unorganized  territory  adjoining 
it  on  the  west,  contains  68,991  square  miles. 

According  to  the  Ninth  Census  Report,  the  number 
of  square  miles  in  the  whole  area  of  the  United  States 
is  3,603,884.  Of  this  the  thirty- eight  States  contain 
2,088,967  and  the  Territories  (including  Alaska  and 
the  Indian  country),  1,513,917. 
C.  G.  27. 


CHAPTER   VII. 

PRACTICAL   OPERATION   OF  THE  CONSTITUTION. 

In  this  chapter  will  be  given  some  account  of  the 
workings  of  the  government  under  the  Constitution. 
The  more  important  offices-  in  the  different  depart 
ments  will  be  mentioned,  with  the  duties,  compensa 
tion,  mode  of  appointment,  etc. 

THE    LEGISLATIVE    DEPARTMENT. 

The  Constitution  provides,  as  has  been  seen,  for  a 
Congress,  composed  of  a  Senate  and  House  of  Repre 
sentatives.  The  Senators  are  elected  by  the  State  legis 
latures,  and  hold  their  office  for  six  years;  the  Repre 
sentatives  are  elected  by  the  people  of  their  several 
districts,  for  the  term  of  two  years.  The  members  of 
the  two  Houses  receive  the  same  compensation,  $5000 
a  year,  with  mileage  at  the  rate  of  "twenty  cents  a 
mile,  to  be  estimated  by  the  nearest  route  usually  trav 
eled  in  going  to  and  returning  from  each  regular  ses 
sion." 

THE    SENATE. 

The  Vice-President  of  the  United  States  is  the  Presi 
dent  of  the  Senate.  He  gives  the  casting  vote  when 
the  Senate  is 'equally  divided,  and  signs  all  bills  and 
resolutions  that  are  passed  by  the  Senate.  His  salary 
was  originally  $5000.  In  1853  it  was  raised  to  $8000, 
in  1873  to  $10,000,  and  in  1874  reduced  to 

The  following  is  the  list  of  Vice-Presidents : 

John  Adams,  1789  to  1797. 

Thomas  Jefferson,  1797  to  1801. 

(314) 


THE  SENATE.  315 

Aaron  Burr,  1801  to  1805. 

George  Clinton,  1805  to  1812.1 

Elbridge  Gerry,  1813  to  1817. 

Daniel  D.  Tompkins,  1817  to  1825. 

John  C.  Calhoun,  1825  to  1832.2 

Martin  Van  Buren,  1833  to  1837. 

Richard  M.  Johnson,  1837  to  1841. 

John  Tyler,  1841  to  1841.3 

George  M.  Dallas,  1845  to  1849. 

Millard  Fillmore,  1849  to  1850.4 

William  R.  King,  1853  to  1853.5 

John  C.  Breckenridge,  1857  to  1861. 

Hannibal  Hamlin,  1861  to  1865. 

Andrew  Johnson,  1865  to  1865.6 

Schuyler  Colfax,  1869  to  1873. 

Henry  Wilson,  1873  to  1875.7 

William  A.  Wheeler,  1877  to . 

There  is  no  provision  in  the  Constitution  or  by  statute 
for  filling  a  vacancy  in  the  office  of  Vice-President. 
From  March  4th,  1853,  to  March  4th,  1857,  there  was 
no  Vice-President,  Mr.  W.  R.  King  having  died  before 
taking  the  oath  of  office.  When  the  Vice-President  be 
comes  President,  the  Senate  choose  a  President  pro  tern- 
pore^  but  this  does  not  constitute  him  Vice-President. 

The  Secretary  of  the  Senate  receives  $4896;  the  Sergeant- 
atrarms,  $4320;  the  Chaplain,  $900. 

THE    HOUSE   OF    REPRESENTATIVES. 

The  presiding  officer,  called  the  Speaker,  is  chosen 
by  the  House.  The  term  had  its  origin  when  legisla 
tive  bodies  were  addressed  by  the  chief  executive,  and 

1Died  April  20th,  1812.  2Eesigncd  December  28th,  1832. 

3  Became  President  April  6th,  1841,  on  the  death  of  Pres.  Harrison. 

4  Became  President  July  9th,  1850,  on  the  death  of  President  Taylor. 
5 Never  took  the  oatli  of  office.     Died  April  18th,  1853. 

6  Became  President  April  15th,  1865,  on  the  death  of  Pres.  Lincoln. 

7  Died  November  23d,  1875. 


316 


THE  LEGISLATIVE  DEPARTMENT. 


their  presiding  officer  was  expected  to  respond.  As  he 
spoke  for  the  body  he  was  called  the  Speaker.  He  signs 
all  bills  and  joint  resolutions  passed  by  the  House,  and, 
under  the  rules  of  the  House,  appoints  its  committees. 
If  both  the  President  and  Vice-President  are  incapaci 
tated  to  perform  the  duties  of  President,  and  there  is 
no  President  pro  tempore  of  the  Senate,  the  Speaker  of 
the  House  acts  as  President.  He  is  required  to  vote  in 
case  of  ballot,  and  he  may  vote  on  other  occasions.  His 
salary  is  $8,000.  The  Speakers  have  been  : 

F.  A.  Muhlenberg,        Penn. 
Jonathan  Trumbull,     Conn. 
F.  A.  Muhlenberg,        Penn. 
Jonathan  Dayton,         N.  J. 
Jonathan  Dayton, 
Theodore  Sedgwick,     Mass. 
Nathaniel  Macon,         N.  C. 
Nathaniel  Macon, 
Nathaniel  Macon, 
Joseph  B.  Varnum,      Mass. 
Joseph  B.  Varnum, 
Henry  Clay,  Ky. 

(  Henry  Clay, 
1  Langdon  Cheves,          S.  C. 

Henry  Clay,  Ky. 

Henry  Clay, 
f  Henry  Clay, 
(John  W.  Taylor,  N.  Y. 

P.  P.  Barbour,  Va. 

Henry  Clay,  Ky. 

John  W.  Taylor,  N.  Y. 

Andrew  Stevenson,       Va. 

Andrew  Stevenson, 

Andrew  Stevenson, 
(  Andrew  Stevenson, 
(John  Bell,  Tenn. 


1st 

Congress, 

2d 

u 

3d 

it 

4th 

li 

5th 

u 

6th 

u 

7th 

it 

8th 

il 

9th 

It 

10th 

It 

llth 

11 

12th 

u 

13th 

u 

14th 

u 

15th 

It 

16th 

u 

17th 

u 

18th 

it 

19th 

ti 

20th 

it 

21st 

ti 

22d 

It 

23d 


THE   HOUSE  OF  REPRESENTATIVES. 


317 


24th  Congress,    James  K.  Polk, 


25th 

26th 

27th 

28th 

29th 

30th 

31st 

32d 

33d 

34th 

35th 

36th 

37th 

38th 

39th 

40th 

41st 

42d 

43d 


James  K.  Polk, 
R.  M.  T.  Hunter, 
John  White, 
John  W.  Jones, 
John  W.  Davis, 


Tenn. 

a 

Va. 
Ky. 
Va. 
Tnd. 


Robert  C.  Winthrop,     Mass. 


Howell  Cobh,  Ga. 

"            Linn  Boyd,  Ky. 
"            Linn  Boyd, 

Nathaniel  P.  Banks,  Mass. 

«            James  L.  Orr.  S.  C. 

Wm.  Pennington,  N.  J. 

"            Galusha  A.  Grow,  Penn. 

Schuyler  Colfax,  Ind. 
u            Schuyler  Colfax, 

Schuyler  Colfax, 

James  G.  Blaine,  Maine. 
"            James  G.  Blaine, 

James  G.  Blaine, 

;c         j  Michael  C.  Kerr,  Ind. 

1  Samuel  J.  Randall,  Penn. 

:<             Samuel  J.  Randall,  " 

The  Clerk  receives  $4500,  the  Sergeant-at-arms  $4000, 
the  Doorkeeper  $2500,  the  Chaplain  $900. 

PRACTICAL    LEGISLATION. 

In  each  House  there  are  Standing  Committees,  to 
whom  are  referred  the  various  matters  of  business  for 
examination  and  "report.  It  has  been  usual  for  the 
Speaker  to  appoint  the  House  Committees,  while  in  the 
Senate  they  are  chosen  by  ballot. 

In  the  Forty-fourth  Congress  the  Senate  had  twenty- 
eight  Standing  Committees,  besides  a  number  of  Select 
Committees  and  Joint  Committees.  The  House  had 
forty-three  Standing  Committees.  The  principal  Com 
mittees  are  those  on  Ways  and  Means,  Appropriations, 


44th 
45th 


318  THE  LEGISLATIVE  DEPARTMENT. 

Judiciary,  Foreign  Relations,  Elections,  Banking  and 
Currency,  Commerce,  Post-office,  Claims,  Pacific  Rail 
road,  Indian  Affairs,  Public  Lands,  District  of  Columbia, 
Public  Expenditures,  Naval  Affairs,  Territories,  Military 
Affairs,  Mines  and  Mining,  Freedmen's  Affairs,  Educa 
tion  and  Labor,  Revision  of  the  Laws,  Patents,  Coin 
age  etc.,  Manufactures,  Agriculture,  Pensions,  Public 
Buildings. 

In  the  Senate,  a  Standing  Committee  usually  consists 
of  nine  members,  and  in  the  House,  of  eleven.  As  "all 
bills  for.  raising  Revenue"  must  originate  in  the  House, 
the  Senate  has  no  Committee  of  Ways  and  Means.  This 
Committee  is  regarded  as  the  most  important,  and  the 
place  of  Chairman  is  held  to  be  next  to  that  of  Speaker 
in  honor.1 

The  House  often  resolves  itself  into  a  Committee  of 
the  Whole,  when  the  Speaker  leaves  the  chair  and  a 
chairman  is  appointed.  This  gives  opportunity  for  free 
discussion  without  the  restraint  of  the  strict  rules  of 
the  House.  When  this  committee  closes  its  session,  in 
technical  terms  rises,  the  Speaker  resumes  the  chair,  and 
the  chairman  of  the  committee  reports  its  proceedings. 

A  bill  introduced  into  either  House  is  supposed  to  be 
read  three  times,  and  at  each  reading  to  be  formally 
acted  upon  by  the  House.  But  usually,  if  no  objection 
is  made,  the  bill  is  read  twice  by  its  title,  referred  to 
the  appropriate  committee,  and  ordered  to  be  printed. 
When  a  bill  has  been  reported  from  the  committee,  it 
is  ordered  to  be  engrossed  and  read  a  third  time,  when 
the  vote  is  taken  upon  its  passage.  After  having 
passed  both  Houses  it  is  enrolled  on  parchment,  and 
carefully  examined  by  the  committee  on  enrolled  bills, 
who  make  their  report,  when  the  bill  is  signed  by  the 


1  There  are  three  Joint  Committees:  on  Public  Printing,  on  En 
rolled  Bills,  and  on  the  Library.  These  consist  of  three  members 
from  each  House. 


THE  EXECUTIVE  DEPARTMENT.  319 

Speaker  of  the  House  and  the  President  of  the  Senate, 
and  sent  to  the  President  of  the  United  States  for  his 
signature. 

When  a  bill  has  been  passed  over  the  veto  of  the 
President  by  the  requisite  majority  in  each  House,  cer 
tificates  to  that  effect,  signed  by  the  Clerk  of  the  House 
of  Representatives  and  the  Secretary  of  the  Senate,  are 
appended  to  the  bill,  in  addition  to  the  official  signa 
tures  of  the  Speaker  of  the  House  and  the  President  of 
the  Senate. 

If  a  bill  has  been  presented  to  the  President  for  his 
approval,  and  not  returned  by  him  within  the  time 
prescribed  by  the  Constitution,  a  note  to  that  effect  is 
appended  by  the  Department  of  State. 

THE  EXECUTIVE  DEPARTMENT. 

The  executive  power  is  vested  in  a  single  officer,  styled 
the  President  of  the  United  States.  We  have  seen  that 
he  must  be  thirty-five  years  of  age,  a  native-born  citi 
zen,  and  a  resident  for  fourteen  years  in  the  United 
States.  He  is  elected  for  a  period  of  four  years  by  elec 
tors  chosen  by  the  people  in  the  several  States.  His 
term  commences  on  the  fourth  of  March.  The  salary, 
which  can  not  be  increased  or  diminished  during  the 
period  for  which  he  shall  have  been  elected,  was  $25,000 
a  year  till  the  fourth  of  March,  1873,  when  Congress 
raised  it  to  $50,000. 

The  President  may  be  re-elected ;  and  of  the  fifteen 
who  have  been  elected  to  the  office,  seven  have  been 
elected  for  a  second  term. 

The  following  is  a  list  of  the  Presidents : 

George  Washington,  of  Virginia,  was  unanimously 
elected  tlie  first  President.  Though  the  term  properly  be 
gan  on  the  fourth  of  March,  he  was  not  sworn  into  office 
until  the  thirtieth  of  April.  He  was  re-elected  unan 
imously,  and  thus  held  the  office  till  March  4tb.,  1797. 

John  Adams,  of  Massachusetts,  was  elected  by  a  small 


320  THE  EXECUTIVE  DEPARTMENT. 

majority  over  Thomas  Jefferson ;  his  term  expired  March 
4th,  1801. 

Thomas  Jefferson,  of  Virginia,  was  elected  by  the 
House  of  Representatives.  John  Adams  was  the  oppos 
ing  candidate  before  the  people,  but  in  the  House  the 
friends  of  Mr.  Adams  voted  for  Aaron  Burr.  Mr.  Jef 
ferson  was  elected  on  the  thirty-sixth  ballot,  and  Mr. 
Burr  became  Vice-President.  Mr.  Jefferson  was  elected 
for  a  second  term,  his  competitor  being  Charles  C. 
Pinckney,  of  South  Carolina.  Mr.  Jefferson  was  Presi 
dent  from  1801-1809. 

James  Madison,  of  Virginia,  was  elected  over  Mr.  C. 
C.  Pinckney  in  1808,  and  again,  in  1812,  over  De  Witt 
Clinton,  of  New  York ;  his  term  ending  March  4th,  1817. 

James  Monroe,  also  of  Virginia,  was  elected,  in  1816, 
over  Rufus  King,  of  New  York,  and  re-elected,  in  1820, 
almost  unanimously. 

John  Quincy  Adams,  of  Massachusetts,  was  elected 
by  the  House  of  Representatives  in  February,  1825. 
The  electoral  votes  were  given  to  Andrew  Jackson,  J. 
Q.  Adams,  W.  H.  Crawford,  and  Henry  Clay.  The 
House,  from  the  three  highest  candidates,  chose  Mr. 
Adams,  who  received  the  votes  of  thirteen  States,  seven 
voting  for  Mr.  Jackson,  and  four  for  Mr.  Crawford.  Mr. 
Adams  served  the  full  term  from  March,  1825,  to  March, 
1829. 

Andrew  Jackson,  of  Tennessee,  was  elected,  in  1828, 
over  Mr.  Adams,  and  again,  in  1832,  over  Henry  Clay, 
of  Kentucky;  holding  the  office  for  eight  years,  to 
March  4th,  1837. 

Martin  Van  Buren,  of  New  York,  was  the  successful 
candidate,  in  1836,  over  Wm.  H.  Harrison,  of  Ohio.  His 
term  ended  March  4th,  1841. 

William  H.  Harrison  was  elected,  in  1840,  over  Mr. 
Van  Buren.  He  entered  upon  his  duties  March  4th, 
1841,  and  died  April  4th  of  the  same  year.  John  Tyler, 
of  Virginia,  the  Vice-President,  thus  became  President. 


THE  PRESIDENTS.  321 

He  took  the  oath  of  office  April  6th,  and  served  the  re 
mainder  of  the  term,  to  March  4th,  1845. 

James  K.  Polk,  of  Tennessee,  was  elected,  in  1844,  over 
Henry  Clay,  and  served  four  years,  to  March  4th,  1849. 

Zachary  Taylor,  of  Louisiana,  was  elected  over  Lewis 
Cass,  of  Michigan,  in  1848.  He  entered  upon  his  duties 
March  4th,  1849,  and  died  July  9th,  1850.  Millard  Fill- 
more,  of  New  York,  the  Vice-President,  took  the  oath 
of  office  July  10th,  and  served  till  March  4th,  1853. 

Franklin  Pierce,  of  New  Hampshire,  was  elected,  in 
1852,  over  Winneld  Scott,  and  held  the  office  one  term, 
from  March,  1853,  to  March,  1857. 

James  Buchanan,  of  Penns}Tlvania,  was  elected,  in 
1856,  over  John  C.  Fremont  and  Millard  Fillmore.  He 
served  one  term,  to  March,  1861. 

Abraham  Lincoln,  of  Illinois,  was  elected,  in  1860, 
over  John  Bell,  John  C.  Breckenridge,  and  Stephen  A. 
Douglas.  In  1864  he  was  re-elected  over  George  B. 
McClellan,  and  died  April  14th,  1865.  Andrew  Johnson, 
of  Tennessee,  the  Vice-President,  was  sworn  in  as  Pres 
ident  April  15th,  and  served  the  remainder  cf  the 
term. 

Ulysses  S.  Grant,  of  Illinois,  was  elected,  in  1868,  over 
Horatio  Seymour,  of  New  York,  and  re-elected  in  1872. 
His  competitor  in  1872,  Horace  Greeley,  of  New  York, 
died  November  29th.  President  Grant's  second  term 
expired  March  4th,  1877. 

Rutherford  B.  Hayes,  of  Ohio,  was  elected,  in  1876, 
over  Samuel  J.  Tilden.  The  vote  stood  185  and  184. 

THE    DEPARTMENTS. 

The  Constitution  contemplates  "heads  of  depart 
ments."  The  departments  are  not  defined  in  the  Consti 
tution,  but  have  been  established  by  law.  There  are  now 
seven  of  these,  viz.:  The  Departments  of  State,  of  the 
Treasury,  of  War,  of  the  Navy,  of  the  Post-office,  of  the 
Interior,  of  Justice.  The  heads  of  the  departments  are 


322  THE  EXECUTIVE  DEPARTMENT. 

known  collectively  as  "  The  Cabinet,"  and  with  two  ex 
ceptions  are  called  Secretaries.  The  head  of  the  Post- 
office  Department  is  called  the  Postmaster-General, 
and  the  head  of  the  Department  of  Justice  is  the  Attor 
ney-General. 

Some  of  the  departments  are  subdivided  into  subordi 
nate  departments,  known  as  Bureaus.  Thus,  in  the  De 
partment  of  the  Interior,  the  Patent  Office  is  a  Bureau, 
and  the  Pension  Office,  and  the  Census  Office.  In  the 
War  Department  there  is  the  Bureau  of  Military  Jus 
tice,  the  Bureau  of  Engineers,  etc. 

The  salaries  of  the  heads  of  departments  were  not 
equal  at  first.  The  Secretary  of  State  and  the  Secre 
tary  of  the  Treasury  had  $3500  each  ;  the  Secretary  of 
War,  $3000;  the  Postmaster-General,  $2000;  and  the 
Attorney-General,  §1500. 

In  1819  the  salary  of  each  of  the  Secretaries  of  the 
Departments  of  State,  the  Treasury,  War,  and  the  Navy, 
was  made  §6000;  that  of  the  Postmaster-General  being 
§4000,  and  that  of  the  Attorney-General  $3500.  In 
1853  all  were  made  equal,  §8000  each ;  in  1873,  $10,000; 
in  1874,  §8000  again.  All  the  heads  of  departments  are 
appointed  by  the  President,  with  the  advice  and  consent 
of  the  Senate. 

THE    DEPARTMENT   OF   STATE. 

Prior  to  the  adoption  of  the  Constitution  Congress 
had  established  the  Department  of  Foreign  Affairs,  to 
be  under  the  direction  of  an  officer  styled  "Secretary 
for  the  Department  of  Foreign  Affairs."  In  July,  1789, 
an  Executive  Department  was  established  under  the 
same  designation,  which  in  September  was  changed  to 
that  of  the  Department  of  State. 

The  office  of  Secretary  of  State  is  usually  regarded  as 
next  in  importance  to  that  of  the  President.  The  du 
ties  of  the  office  are  not  very  clearly  defined  by  law,  but 
are  largely  such  as  come  from  the  instructions  of  the 


DEPARTMENT  OF  STATE.  323 

President.  The  Secretary  is  to  "  perform  and  execute 
such  duties  as  shall  from  time  to  time  be  enjoined  on 
or  intrusted  to  him  by  the  President,  agreeably  to  the 
Constitution,  relative  to  correspondences,  commissions, 
or  instructions  to  or  with  public  ministers  or  consuls 
from  the  United  States." 

He  preserves  the  original  of  all  treaties,  public  docu 
ments,  laws,  and  correspondence  with  foreign  powers. 
He  keeps  the  seal  of  the  United  States,  and  affixes  it  to 
all  commissions  which  are  signed  by  the  President.  He 
authenticates  all  proclamations  of  the  President.  He 
furnishes  copies  of  records  and  papers  in  his  office,  au 
thenticated  under  the  seal  of  the  department. 

He  has  charge  of  foreign  relations,  and  conducts  the 
correspondence  with  foreign  ministers,  and  with  our 
ministers  arid  consuls.  He  is  the  organ  of  communica 
tion  of  the  President  with  the  governors  and  other  of 
ficers  of  Territories. 

He  issues  passports  to  citizens  wishing  to  visit  foreign 
countries.  He  issues  warrants  for  the  extradition  of 
criminals  who  are  to  be  delivered  up  to  foreign  govern 
ments  in  accordance  with  treaty  stipulations.  He  pre 
sents  to  the  President  all  foreign  ministers. 

The  salary  of  the  Secretary  of  State  is  now  $8,000  a 
year.  In  1789,  it  was  established  at  $3500.  In  1799,  it 
was  made  $5000;  in  1819,  66000;  in  1853,  $8000;  in 
1873,  $10,000;  and  in  1874,  $8000. 

The  following  persons  have  held  the  office  of  Secre 
tary  of  State : 

Thomas  Jefferson,  Va.,  appointed  Sept.  26,  1789. 

Edmund  Randolph,  Va.,  "  Jan.  2,  1794. 

Timothy  Pickering,  Mass.,        "  Dec.  10,  1795. 

John  Marshall,  Va.,  "  May  13,  1800. 

James  Madison,  Va.,  "  March  5,  1801. 

Robert  Smith,  Md.,  "  March  6,  1809. 

James  Monroe,  Va.,  "  April  2,  1811. 


324 


THE  EXECUTIVE  DEPARTMENT. 


John  Q.  Adams,  Mass., 

Henry  Clay,  Ky., 

Martin  Van  Buren,  N.  Y., 

Edward  Livingston,  La., 

Louis  McLane,  Del., 

John  Forsyth,  Ga., 

Daniel  Webster,  Mass., 
Hugh  S.  Legare,  acUn£.  S.  C., 

Abel  P.  Upshur,  Va., 

John  C.  Calhoun,  S.  C. 

James  Buchanan,  Penn., 

John  M.  Clayton,  Del., 

Daniel  Webster,  Mass., 

Edward  Everett,  Mass., 

William  L.  Marcy,  N.     Y. 

Lewis  Cass,  Mich., 

Jeremiah  S.  Black,  Penn., 

William  H.  Seward,  N.  Y., 

Elihu  B.  Washburne,  111., 

Hamilton  Fish,  N.   Y., 

William  M.  Evarts,  N.  Y., 


appointed  March  5,  1817. 
"          March  8,  1825. 

March  6,  1829. 

May  24,  1831. 

May  29,  1833. 

June  27,  1834. 
"          March  5,  1841. 

May  9,  1843. 

July  24,  1843. 
"          March  6,  1844. 

March  5,  1845. 

March  7,  1849. 

July  20,  1850. 
"          Nov.  6,  1852. 
,       "          March  7,  1853. 
"          March  6,  1857. 
"          Dec.  17j  1860. 
"          March  5,  1861. 

March  5,  1869. 
"          March  16,  1869. 

March  10,  1877. 


It  will  be  seen  that  six  of  these  afterwards  were 
elected  to  the  presidency,  viz.:  Jefferson,  Madison, 
Monroe,  J.  Q.  Adams,  Van  Buren,  and  Buchanan. 
Three,  Madison,  Monroe,  and  Adams,  passed  from  the 
office  of  Secretary  of  State  to  that  of  President. 

In  1853  an  Assistant  Secretary  was  authorized;  in 
1866,  a  second;  and  in  1874,  a  third.  Each  receives  a 
salary  of  $3500. 

AMBASSADORS   AND   OTHER   PUBLIC   MINISTERS. 

All  persons  who  are  sent  abroad  to  represent  our  gov 
ernment  are  connected  with  the  Department  of  State. 
These  representatives  are  of  different  grades,  though  it 
is  not  easy  to  draw  the  lines  that  distinguish  them. 
The  Constitution  speaks  of  "  Ambassadors."  and  the 


DEPARTMENT  OF  STATE.  325 

act  of  August  18th,  1856,  states  the  compensation  which 
ministers  of  this  class  shall  receive.  Mr.  Gillet  says: 
"  The  federal  government  has  never  sent  an  ambassador 
to  any  foreign  government,  and,  it  is  said,  has  never 
received  a  foreign  representative  who  was  strictly  such. 
France,  Russia,  Great  Britain,  Austria,  and  Spain  are 
the  only  modern  governments  who  have  sent  ambas 
sadors  to  other  governments.  Prussia  has  never  done 


so."1 

The  act  of  1856,  referred  to  above,  provides  for  the 
compensation  of  the  different  classes  of  ministers ;  Am 
bassadors  and  Envoys  Extraordinary  and  Ministers 
Plenipotentiary  are  entitled  to  receive  the  full  com 
pensation  named;  Ministers  Resident  and  Commission 
ers,  seventy-five  per  centum ;  Charges  d'Affaires,  fifty 
per  centum ;  and  Secretaries  of  Legation,  fifteen  per 
centum.  Judging  'from  the  salaries  paid,  the  Envoy 
Extraordinary  and  Minister  Plenipotentiary  is  of  equal 
rank  with  the  Ambassador;  and  this  is  the  formal 
designation  given  by  our  government  to  the  highest 
class  of  foreign  ministers. 

Envoys  Extraordinary  and  Ministers  Plenipotentiary  are 
sent  to  thirteen  governments.  Four  of  these  receive 
$17,500  a  year,  viz :  those  to  France,  the  German  Em 
pire,  Russia,  and  Great  Britain;  seven  receive  $12,000, 
viz:  those  to  Austria,  Brazil,  China,  Italy,  Mexico, 
Japan,  and  Spain;  two  $10,000,  viz:  those  to  Chili 
and  Peru.2  Hon.  John  Welsh  is  the  present  Minister 
to  Great  Britain,  Hon.  Edward  F.  Noyes  to  France,  and 
Hon.  Bayard  Taylor  to  the  German  Empire. 

Ministers  Resident  are  sent  to  the  Argentine  Republic, 
Belgium,  Hawaiian  Islands,  Netherlands,  Sweden  and 
Norway,  Turkey,  and  Venezuela.  These  receive  each 


1  The  Federal  Government,  p.  172, 

2  Prior  to  1856,  a  Minister  Plenipotentiary  received  $9000  per  an' 
num  salary,  and  $9000  outfit. 


326  THE   EXECUTIVE   DEPARTMENT. 

$7500  a  year.  One  Minister  Resident,  with  a  salary  of 
$10,000,  is  accredited  to  Guatemala,  Costa  Rica,  Hon 
duras,  Salvador,  and  Nicaragua.  A  Minister  Resident 
and  Consul-General  to  Hayti  receives  $7500,  and  one  to 
Liberia,  $4000. 

Ministers  Resident  are  inferior  in  rank  to  Envoys 
Extraordinary  and  Ministers  Plenipotentiary.  Their 
duties,  however,  are  the  same.  The  difference  is  prin 
cipally  in  the  relative  importance  of  the  governments 
to  which  they  are  sent. 

The  term  Commissioner  has  sometimes  been  applied 
by  our  government  to  diplomatic  representatives.  Com 
missioners  were  formerly  sent  to  China,  Mexico,  and  other 
places.  At  present  no  regular  diplomatic  officer  is  styled 
a  Commissioner.  The  title  is  often  applied  to  those  sent 
on  special  service,  as  in  the  case  of  the  Commissioners 
who  helped  to  frame  the  Treaty  of  Washington. 

Charges  d' Affaires  are  sent  to  Denmark,  Greece,  Swit 
zerland,  Portugal,  and  Paraguay  and  Uruguay,  with  sal 
aries  of  65000  each.  The  Charge  d' Affaires  ranks  below 
the  Minister  Resident  and  Commissioner.  The  term 
would  imply  a  kind  of  minister  ad  interim,  rather  than 
a  permanent  officer.  Formerly,  however,  a  majority  of 
our  diplomatic  representatives  were  styled  Charges 
d1  Affaires.  Thus  in  1849  there  were  eight  Ministers 
Plenipotentiary,  one  Minister  Resident  (to  Turkey), 
and  sixteen  Charges  d' Affaires.  At  present,  as  we  have 
seen,  our  government  is  represented  in  other  countries 
by  thirteen  Ministers  Plenipotentiary,  ten  Ministers 
Resident,  and  five  Charges  d'Affaires. 

The  Secretary  of  Legation  is  the  secretary,  or  clerk,  to 
a  foreign  embassy.  A  Secretary  of  Legation  is  usually 
sent  to  every  government  to  which  is  accredited  a 
Minister  Plenipotentiary.  At  Paris,  London,  and  Ber 
lin  there  are  Assistant  Secretaries.  The  Ministers  to 
Chili  and  Japan  have  no  Secretaries,  while  there  is  a 
Secretary  at  Constantinople,  although  the  United  States 


DEPARTMENT   OF  STATE.  327 

are  represented  there  by  a  Minister  Resident.  Some 
times  through  the  death  or  removal  of  the  Minister,  his 
duties  are  devolved  on  the  Secretary  of  Legation;  in 
which  case  he  receives  the  salary  of  a  Charge. 

Consuls  are  commercial  rather  than  diplomatic  agents. 
Their  principal  duty  is  to  watch  over  the  interests  of 
our  commerce  in  the  ports  of  the  different  countries,  and 
to  protect  the  rights  of  seamen.  In  execution  of  this 
general  duty,  they  hold  the  ship's  papers  of  all  Ameri 
can  vessels  while  in  port;  provide  for  the  return  home 
of  those  who  are  destitute  :  they  hear  complaints  of  sea 
men;  they  reclaim  deserters;  they  appoint  examiners 
for  vessels  reported  unseaworthy;  they  cause  mutinous 
sailors  to  be  arrested  and  sent  home  for  trial;  they  re 
quire  three  months  extra  wages  to  be  paid  to  seamen 
when  discharged  through  the  sale  of  the  vessel,  one- 
third  to  be  retained  as  a  fund  with  which  to  send  Ameri 
can  sailors  home,  or  provide  for  those  who  are  destitute; 
they  take  possession  of  the  personal  property  of  Ameri 
can  citizens  dying  abroad ;  they  take  measures  for  the 
saving  of  stranded  vessels  and  their  cargoes,  etc.,  etc. 

In  1871  the  United  States  had  thirteen  Consuls-Gen 
eral —  two  of  whom  were  also  Ministers  Resident,  those 
to  Hayti  and  Liberia  —  two  hundred  and  sixty-six 
Consuls,  and  thirty-five  Commercial  Agents.  Until  the 
year  1855  these  officers  were  compensated  by  fees.  In 
March  of  that  year  the  diplomatic  and  consular  systems 
were  remodeled,  and  salaries  are  now  paid  in  all  the 
more  important  ports.  Fees  are  collected,  but  they  are 
accounted  for  to  the  government.  Consuls  receive  from 
$1000  to  $6000  per  annum.  Most  Consuls  who  are  paid 
by  fees,  or  who  receive  small  salaries,  are  at  liberty  to 
transact  business  for  themselves;  others  are  prohibited 
from  so  (loin 2. 

The  title  Consul- General  was  not  used  till  1855.  Such 
officers  are  now  sent  to  British  India,  Canada,  China, 
Cuba,  Egypt,  France,  the  German  Empire,  Great  Britain, 


328  THE  EXECUTIVE  DEPARTMENT. 

Hayti,  Italy,  Liberia,  Mexico,  and  Turkey.    Their  sala 
ries  range  from  $2000  to  $6000. 

THE    TREASURY    DEPARTMENT. 

This  department  was  established  in  1789.  Its  head 
is  the  Secretary  of  the  Treasury.  The  original  act  pro 
vided  also  for  a  Comptroller,  an  Auditor,  a  Treasurer, 
a  Register,  and  an  Assistant  to  the  Secretary. 

It  is  the  duty  of  the  Secretary  to  digest  and  prepare 
plans  for  the  improvement  and  management  of  the  rev 
enue,  and  for  the  support  of  public  credit ;  to  superin 
tend  the  collection  of  the  revenue;  to  decide  on  the 
forms  of  keeping  accounts  and  making  returns;  to  grant, 
under  certain  limitations,  all  warrants  for  money  to  be 
issued  from  the  treasury  in  pursuance  of  appropriations 
by  law ;  and,  generally,  to  perform  all  such  services  rel 
ative  to  the  finances  as  shall  be  required. 

The  power  and  influence  of  this  department  have  in 
creased  with  the  growth  of  the  country  in  wealth  and 
population,  and  it  has  been  still  more  enhanced  by  the 
great  increase  of  the  national  debt,  the  establishment 
of  the  system  of  internal  revenue,  the  issue  of  a  legal 
tender  paper  currency,  and  the  establishment  of  the 
national  banking  system. 

The  salary  of  the  Secretary  of  the  Treasury  has  been 
the  same  as  that  of  the  Secretary  of  State :  in  1789, 
$3500;  in  1799,  $5000;  in  1819,  $6000;  in  1853,  $8000; 
in  1873.  $10,000;  in  1874,  $8000. 

The  following  is  a  list  of  Secretaries,  with  the  date 
of  their  appointment : 

Alexander  Hamilton,  N.  Y.,  appointed  Sept.  11,  1789. 

Oliver  Wolcott,  Conn.,  "  Feb.  3,  1795. 

Samuel  Dexter,  Mass.,  "  Dec.  31,  1800. 

Albert  Gallatin,  Penn.,  "  Jan.  26,  1802. 

George  W.  Campbell,  Tenn.,  "  Feb.  9,  1814. 

Alexander  J.  Dallas,  Penn.,  "  Oct.  6,  1814. 

William  H.  Crawford,  Ga.T  "  March  5,  1817. 


SECRETARIES  OF  THE  TREASURY. 


329 


Richard  Rush,  Perm., 

Samuel  D.  Ingham,  Perm., 

Louis  McLane,  Del., 

William  J.  Duane,  Perm., 

Roger  B.  Taney,1  Md., 

Levi  Woodbury,  N.  H., 

Thomas  Ewing,  Ohio, 

Walter  Forward,  Perm., 

John  C.  Spencer,  N.  Y., 

George  M.  Bibb,  Ky., 

Robert  J.  Walker,  Miss., 

William  M.  Meredith,  Penn., 

Thomas  Cor  win,  Ohio, 

James  Guthrie,  Ky., 

Howell  Cobb,  Ga., 

Phillip  F.  Thomas,  Md., 

John  A.  Dix,  N.  Y., 

Salmon  P.  Chase,  Ohio, 

William  P.  Fessenden,  Maine, 

Hugh  McCulloch,  Ind., 

Alexander  T.  Stewart,2  N.  Y., 

George  S.  Boutwell,  Mass., 

William  A.  Richardson,  Mass., 

Benjamin  H.  Bristow,  Ky., 

Lot  M.  Morrill,  Maine, 

John  Sherman,  Ohio, 


appointed  March  7,  1825. 
"  March  6,  1829. 

"  Aug.  8,  1831. 

May  29,  1833. 

Sept.  23,  1833. 
"  June  27,  1834. 

"  March  5,  1841. 

«  Sept.  13,  1841. 

«  March  3,  1843. 

«  June  15,  1844. 

«  March  5,  1845. 

"  March  7,  1849. 

July  20,  1850. 

March  7,  1853. 

March  6,  1857. 

Dec.  12,  1860. 

Jan.  11,  1861. 
"  March  5,  1861. 

July  1,  1864. 

March  7,  1865. 

March  5,  1869. 

March  12, 1869. 

March  17, 1873. 

June  2,  1874. 

July  7,  1876. 

March  8,  1877. 


There  are  two  Assistant  Secretaries.  The  salary  is 
$4500. 

BUREAUS   IN    THE    TREASURY    DEPARTMENT. 

The  work  in  this  department  is  performed  by  vari 
ous  officers,  distributed  in  bureaus  as  follows :  office  of 
First  Comptroller,  Second  Comptroller,  First  Auditor, 
Second  Auditor,  Third  Auditor,  Fourth  Auditor,  Fifth 
Auditor,  Sixth  Auditor,  Treasurer,  Register,  Commis- 


1  Rejected  by  the  Senate. 

2  Resigned,  being  ineligible  as  an  importer. 

C.  G.  28. 


330  THE  EXECUTIVE  DEPARTMENT. 

sioner  of  Customs,  Comptroller  of  the  Currency,  Com 
missioner  of  Internal  Revenue,  Bureau  of  Statistics, 
the  Mint,  Bureau  of  Engraving  and  Printing. 

It  is  the  duty  of  the  Comptrollers  to  examine  all  ac 
counts  settled  by  the  Auditors,  and  to  countersign 
warrants  drawn  upon  the  Treasurer  by  the  heads  of 
the  different  departments.  Having  the  final  adjudica 
tion  of  accounts  involving  vast  sums  of  money,  the 
Comptrollers  hold  a  most  responsible  office,  requiring 
great  capacity  as  well  as  the  strictest  integrity. 

The  office  of  Comptroller  was  created  in  1789,  and  in 
1817  a  Second  Comptroller  was  provided  for.  The  First 
Comptroller  examines  all  accounts  settled  by  the  First 
and  Fifth  Auditors,  and  certifies  the  balances  arising 
thereon  to  the  Register.  He  countersigns  all  warrants 
drawn  by  the  Secretary  of  the  Treasury.  He  decides 
any  cases  appealed  from  the  decision  of  the  Sixth 
Auditor,  and  superintends  the  recovery  of  all  debts  to 
the  United  States.  He  receives  $5000  a  year. 

The  Second  Comptroller  examines  the  accounts  settled 
by  the  Second,  Third,  and  Fourth  Auditors,  and  certi 
fies  the  balances  to  the  Secretary  of  the  department  in 
which  the  expenditure  has  been  incurred.  Pie  counter 
signs  all  warrants  drawn  by  the  Secretaries  of  the  War 
and  Navy  Departments.  (Those  from  the  Department 
of  the  Interior  are  divided  between  the  two  Comptrol 
lers.)  The  Second  Comptroller  receives  $5000  a  year. 

THE    AUDITORS. 

The  act  of  1789,  establishing  a  Treasury  Department, 
provides  for  a  single  Auditor,  who  was  to  receive  all 
public  accounts,  to  certify  the  balance,  and  transmit 
the  accounts,  with  the  vouchers  and  certificates,  to  the 
Comptroller  for  his  decision.  In  1817,  four  additional 
Auditors  were  authorized,  and  the  work  was  divided 
among  them.  In  1836,  a  Sixth  Auditor  was  added. 
Each  Auditor  receives  a  salary  of  $3600. 


AUDITORS  OF  THE  TREASURY.  331 

The  First  Auditor  examines  the  accounts  accruing  in 
the  Treasury  Department,  and  those  connected  with  the 
salaries  of  civil  officers,  territorial  accounts,  judiciary 
expenses,  contingent  expenses  of  the  Senate  and  House 
of  Representatives,  etc. 

The  Second  Auditor  receives  accounts  relating  to  the 
pay  and  clothing  of  the  army,  the  subsistence  of  officers, 
bounties  and  premiums,  military  and  hospital  stores, 
the  contingent  expenses  of  the  War  Department,  and 
those  pertaining  to  Indian  affairs. 

The  Third  Auditor  has  charge  of  accounts  relative  to 
the  subsistence  of  the  army,  the  Quartermaster's  depart 
ment,  and,  generally,  all  accounts  of  the  War  Depart 
ment  other  than  those  provided  for. 

The  Fourth  Auditor  receives  all  accounts  accruing  in 
the  Department  of  the  Navy. 

The  Fifth  Auditor  receives  the  accounts  of  the  Depart 
ment  of  State,  including  the  diplomatic  and  consular 
agents;  the  contingent  expenses  of  the  Post-office  De 
partment  ;  the  expenses  of  the  Census ;  and  the  expenses 
of  assessing  and  collecting  the  Internal  Revenue. 

The  office  of  Sixth  Auditor  was  created  in  1836.  His 
duties  are  partly  those  of  an  Auditor  and  partly  those  of 
a  Comptroller.  He  certifies  balances  to  the  Postmaster- 
General  instead  of  to  one  of  the  Comptrollers.  He  is 
styled  an  Auditor  of  the  Treasury  for  the  Post-office 
Department,  and  has  direct  official  relations  to  both 
these  departments.  The  other  Auditors  transmit  their 
statements  to  the  Comptrollers  for  revision  and  final 
decision,  but  the  Sixth  Auditor's  decisions  are  final,  ex 
cept  special  appeal  is  taken  to  the  First  Comptroller. 

The  office  of  Treasurer  was  created  in  1789.  It  is  his 
duty  to  receive  and  keep  the  moneys  of  the  United 
States,  and  to  disburse  the  same  upon  warrants  drawn 
by  the  Secretary  of  the  Treasury,  countersigned  by  the 
First  Comptroller,  and  recorded  by  the  Register.  In 
1846  certain  rooms  and  vaults  in  the  new  Treasury 


THE  EXECUTIVE  DEPARTMENT. 

buildings  were  appropriated  to  the  use  of  the  Treasurer, 
which,  with  other  apartments  provided  as  places  of  de 
posit  of  the  public  money,  were  constituted  i;  The  Treas 
ury  of  the  United  States."  Provision  was  made  for  the 
appointment  of  four  Assistant  Treasurers — at  New  York, 
Boston,  Charleston,  and  St.  Louis  — and  the  treasurers 
of  the  mints  at  Philadelphia  and  New  Orleans  were  to 
act  as  such,  having  the  care  of  the  public  moneys  de 
posited  with  them.  When  the  national  banks  were 
established,  in  1863,  the  Secretary  of  the  Treasury  was 
authorized  to  designate  them  as  depositaries  of  public 
moneys,  except  receipts  from  customs,  and  they  could  be 
employed  as  financial  agents  of  the  government. 

The  signature  of  the  Treasurer  is  on  all  the  treasury- 
notes  issued  by  the  United  States,  and  on  all  the  postal 
or  fractional  currency.  Mr.  F.  E.  Spinner  held  this 
office  from  1860  to  1875.  The  salary  is  $6000. 

Besides  those  mentioned  above,  there  are  Assistant 
Treasurers  at  Baltimore,  Cincinnati,  Chicago,  and  San 
Francisco.  Their  salaries  are  as  follows :  New  York, 
$8000;  Boston,  Philadephia,  St.  Louis,  Baltimore,  Cin 
cinnati,  Chicago,  $4500;  New  Orleans,  $4000;  San 
Francisco,  $5500. 

The  office  of  Register  was  created  in  1789.  It  was 
made  his  duty  to  keep  all  accounts  of  the  receipts  and 
expenditures,  and  of  all  debts  due  to  or  from  the  United 
States;  to  preserve  with  their  vouchers  accounts  which 
have  been  finally  adjusted ;  and  to  record  all  warrants 
for  the  receipts  or  payment  of  moneys  at  the  treasury, 
and  certify  the  same  thereon.  He  signs  all  stocks  and 
bonds  of  the  United  States,  and  superintends  their  issue. 
He  signs  all  treasury-notes,  and  "keeps  the  great  ledgers 
which  show  the  whole  receipts  and  expenditures  of  the 
government."  His  salary  is  $4000. 

There  was  no  Commissioner  of  Customs  until  1849, 
when  certain  acts  and  powers  relating  to  the  receipts 
from  customs  and  accounts  of  collectors  and  other 


TREASURY  BUREAUS.  333 

officers,  which  had  before  devolved  on  the  First  Comp 
troller,  were  transferred  to  this  new  officer.  His  salary 
is  $4000. 

In  1863  a  separate  bureau  was  established  in  the 
Treasury  Department,  called  the  Bureau  of  Currency,  to 
be  under  the  direction  of  an  officer  denominated  the 
Comptroller  of  the  Currency.  The  act  establishing  this 
bureau  was  the  "Act  to  provide  a  National  Currency, 
secured  by  a  pledge  of  United  States  Bonds,  and  to 
provide  for  the  circulation  and  redemption  thereof," 
passed  February  25th,  1863,  and  subsequently  super 
seded  by  an  act  for  the  same  purpose,  passed  June 
3d,  1864. 

It  is  the  duty  of  the  Comptroller  to  see  that  all 
banking  associations  established  under  this  act  are 
organized  and  managed  according  to  law;  to  provide 
the  banks  with  notes  for  circulation;  to  send  agents 
to  examine  into  their  condition  ;  to  close  up  the  affairs 
of  such  as  fail  to  pay  their  notes ;  and  report  annually 
to  Congress  their  condition,  etc. 

Since  the  organization  of  the  national  banking  sys 
tem,  the  number  of  banks  organized,  to  November  1st, 
1876,  was  2343;  of  these  forty-nine  have  failed,  and  two 
hundred  and  seven  have  gone  into  voluntary  liquida 
tion;  leaving  2087  in  existence  at  that  time.  The  sal 
ary  of  the  Comptroller  of  the  Currency  is  $5000. 

Bureau  of  Internal  Revenue. — The  act  establishing  this 
bureau,  the  head  of  which  is  styled  Commissioner  of  In 
ternal  Revenue,  was  passed  in  1862.  A  similar  office  was 
created  in  1813,  and  the  officer  was  styled  Commissioner 
of  Revenue ;  it  was  abolished,  however,  by  the  act  of 
December  23d,  1817.  For  a  period  of  five  years,  com 
mencing  with  1863,  the  receipts  into  the  treasury  from 
Internal  Revenue  largely  exceeded  those  from  Customs, 
but  they  are  now  much  diminished.  In  the  year  end 
ing  June,  1866,  the  receipts  from  this  source  were  three 
hundred  and  nine  millions  of  dollars;  in  the  year 


334  THE  EXECUTIVE   DEPARTMENT. 

ending  June,  1872,  they  were  but  one  hundred  and 
thirtv  millions.  For  the  year  ending  June,  1877,  the 
income  was  one  hundred  and  eighteen  millions.  The 
Internal  Revenue  taxes  have  been  repealed  for  the 
most  part,  except  those  on  tobacco,  on  malt  and  spirit 
uous  liquors,  and  a  few  stamp  duties. 

The  salary  of  the  Commissioner  is  $6000.  Formerly 
there  were  three  Deputy  Commissioners:  there  is  now 
but  one.  His  salary  is  $3200. 

The  act  establishing  the  Bureau  of  Internal  Revenue 
provided  for  the  appointment  of  an  Assessor  and  a  Col 
lector  in  each  collection  district,  and  for  twenty-five 
Supervisors.  The  office  of  Assessor  ceased  July  1st,  1873, 
and  the  duties  are  devolved  on  the  Collectors. 

In  1866,  a  Bureau  of  Statistics  was  established,  the 
Director  of  which  is  to  prepare  the  annual  report  on 
the  statistics  of  commerce  and  navigation,  and  exports 
and  imports;  and  to  prepare  and  publish  monthly  re 
ports  of  various  statistics.  His  salary  is  $2400. 

By  act  of  February  12th,  1873,  The  Mint  of  the  United 
States  was  established  as  a  Bureau  of  the  Treasury  De 
partment,  the  chief  officer  to  be  styled  The  Director  of 
the  Mint.  He  is  to  have  the  general  supervision  of  all 
mints  and  assay  offices.  His  salary  is  $4500  and  trav 
eling  expenses.  The  Superintendents  of  the  mints  at 
Philadelphia  and  San  Francisco  also  receive  $4500 
each ;  those  at  Carson,  Denver,  and  New  Orleans, 
smaller  salaries. 

The  Bureau  of  Engraving  and  Printing  was  established 
in  1874.  The  design  is  to  have  executed  under  its  su 
pervision  the  internal  revenue  stamps,  the  national 
bank  notes,  and  the  notes,  bonds,  and  securities  of  the 
United  States. 

The  office  of  the  Coast  Survey  is  connected  with  the 
Treasury  Department.  It  has  for  its  object  the  prep 
aration  of  charts  prepared  from  actual  survey  of  the 
entire  sea-coast  of  the  United  States.  There  have  been 


THE   WAR  DEPARTMENT.  335 

but  four  Superintendents  since  the  work  was  begun  in 
1807,  viz.,  F.  R.  Hassler,  A.  D.  Bache,  Benjamin  Pierce, 
and  C.  P.  Patterson.  The  salary  is  $6000.  The  surveys 
of  the  Great  Lakes  are  under  the  control  of  the  War 
Department. 

In  1852,  the  Light-house  Board  was  constituted.  It 
consists  of  three  officers  of  the  army,  three  of  the  navy, 
and  two  civilians  of  high  scientific  attainments,  with 
the  Secretary  of  the  Treasury  as  ex  officio  president.  To 
this  board  are  committed  all  duties  pertaining  to  the 
construction  and  superintendence  of  light-houses,  light- 
vessels,  beacons,  buoys,  etc.  The  number  of  light-houses, 
stake  lights,  etc.,  in  1876,  was  nine  hundred  and 
seventy-four;  and  the  number  of  light-keepers  nine 
hundred  and  ninety-one. 

In  the  collections  of  customs  many  persons  are  em 
ployed  in  connection  with  the  different  custom-houses. 
The  chief  officer  is  the  Collector.  The  Naval  Officer  and 
the  Surveyor  have  important  duties,  wyhich  are  not  very 
clearly  indicated  by  their  names.  They  are  appointed 
only  in  the  larger  ports.  All  these  officers  are  paid  by 
fees,  but  their  compensation  is  limited  as  follows:  Col 
lector,  $6000;  Naval  Officer,  $5000;  Surveyor,  $4500. 

The  Supervising  Architect  has  the  general  charge  of 
planning  and  constructing  all  United  States  Buildings, 
as  custom-houses,  court-houses,  post-offices,  marine  hos 
pitals,  mints,  etc.  His  salary  is  §4500. 

THE    WAR    DEPARTMENT. 

The  office  of  Secretary  of  War  was  created  in  1789. 
Such  a  department  existed  before  the  adoption  of  the 
Constitution,  and  "an  ordinance  for  ascertaining  the 
powers  and  duties  of  the  Secretary  at  War"  was  passed 
by  the  Continental  Congress,  January  27th,  1785.  The 
Department  of  the  Navy  was  not  established  till  1798, 
and  up  to  that  time  the  duties  of  the  Secretary  of  War 
extended  to  naval  as  well  as  military  affairs. 


336 


THE  EXECUTIVE  DEPARTMENT. 


The  salary  of  the  Secretary  of  War  was  for  thirty 
years  $500  less  than  those  of  the  Secretaries  of  State 
and  the  Treasury,  being  $3000  in  1789,  and  $4500  in 
1799.  In  1819  the  salaries  of  the  four  Secretaries  were 
made  equal— $6000.  In  1853  they  were  made  $8000; 
in  1873,  $10,000;  and  in  1874,  $8000. 

The  office  has  been  held  by  the  following  persons  : 

Sept.  12,  1789. 
Jan.  2,  1795. 
Jan.  27, 1796. 
May  7,  1800.1 
May  13,  1800. 
Feb.  3,  1801.2 
March  5,  1801. 
March  7,  1809. 
Jan.  13,  1813. 
Sept.  27,  1814. 
March  3,  1815. 
March  5,  1817.3 
April  7,  1817. 
Oct.  8,  1817. 
March  7,  1825. 
May  26?  1828. 
March  9,  1829. 
Aug.  1,  1831. 
March  3,  1837. 
March  7,  1837. 
March  5,  1841. 
Sept.  13,  1841.3 
Oct.  12,  1841. 
March  8.  1843. 
Feb.  15,  1844. 
March  5,  1845. 

1  Nominated  May  7.  Action  postponed  by  Senate.  Appointed 
Secretary  of  State  May  13.  2  Declined  to  serve.  3  Declined. 


Henry  Knox, 

Mass., 

appointed 

Timothy  Pickering, 

Mass., 

tt 

John  McHenry, 

Md., 

a 

John  Marshall, 

Va, 

a 

Samuel  Dexter, 

Mass., 

a 

Roger  Griswold, 

Conn., 

tt 

Henry  Dearborn, 

Mass., 

u 

William  Eustis, 

Mass., 

tt 

John  Armstrong, 

N.  Y, 

n 

James  Monroe, 

Va, 

u 

William  H.  Crawford, 

Ga, 

It 

Isaac  Shelby, 

Ky, 

ti 

George  Graham, 

Va, 

ti 

John  C.  Calhoun, 

S.  C, 

ti 

James  Barbour,  ' 

Va, 

a 

Peter  B.  Porter, 

N.  Y, 

u 

John  H.  Eaton,     ' 

Tenn., 

u 

Lewis  Cass, 

Mich, 

tt 

Benjamin  F.  Butler, 

N.  Y, 

(i 

Joel  R.  Poinsett, 

s.  c,. 

u 

John  Bell, 

Tenn, 

u 

John  McLean, 

Ohio, 

u 

John  C.  Spencer, 

N.  Y, 

tt 

James  M.  Porter. 

Penn., 

tl 

William  Wilkins, 

Penn., 

tl 

William  L.  Marcy, 

N.  Y, 

tl 

SECRETARIES  OF  WAR.  337 

George  W.  Crawford,  Ga.,     appointed  March  7,  1849. 

Charles  M.  Conrad,  La.,  "  Aug.  15,  1850. 

Jefferson  Davis,  Miss.,          "  March  5,  1853. 

John  B.  Floyd,  Va.,  «  March,  6,  1857. 

Joseph  Holt,  Ky.,  "  Jan.  18,  1861. 

Simon  Cameron,  Penn.,         "  March  5,  1861. 

Edwin  M.  Stanton,  Penn.,         "  Jan.  15,  1862. J 

Ulysses  S.  Grant,  111.,  ad  interim,  Aug.  12,  1867. 

Edwin  M.  Stanton,  Penn.,  appointed  Jan.  13,  1868.2 

John  M.  Schofield,  Mo.,  "  May  29,  1868. 

John  A.  Rawlins,  111.,  "  March  12,  1869. 

William  W.  Belknap,  Iowa,          u  Nov.  1,  1869. 

Alphonso  Taft,  Ohio,  "  March  9,  1876. 

J.  Donald  Cameron,  Penn.,         "  May  22,  1876. 

George  W.  McCrary,  Iowa,          "  March  10,  1877. 

The  War  Department  is  divided  into  various  subdi 
visions,  in  which  are  employed  many  men,  civilians 
as  well  as  those  connected  with  the  army.  These  dif 
ferent  offices,  which  will  be  understood  from  their 
titles,  are  as  follows: 

The  Office  of  the  Adjutant-General, 
The  Office  of  the  Quartermaster-General, 
The  Office  of  the  Commissary-General, 
The  Office  of  the  Paymaster-General, 
The  Office  of  the  Surgeon-General, 
The  Office  of  the  Chief-of-Engineers, 
The  Ordnance  Office, 
The  Signal  Office, 
The  Bureau  of  Military  Justice. 

The  Signal  Office  and  the  Bureau  of  Military  Justice, 
were  established  in  1866.  The  Chief  Signal  officer  has 


1  Suspended  by  President  Johnson  August  12th,  1867. 

2  Restored  by  the  Senate.     Resigned  May  26th,  1868. 

C.  G.  29. 


THE  EXECUTIVE  DEPARTMENT. 

the  rank  and  pay  of  a  colonel  of  cavalry.  The  Bureau  of 
Military  Justice  is  in  charge  of  a  Judge- Advocate-Gen 
eral,  who  has  the  rank  and  pay  of  a  Brigadier-General. 

The  Military  Academy  at  West  Point,  in  the  State 
of  New  York,  is  connected  with  the  War  Department. 
It  was  established  in  1802.  At  first,  provision  was 
made  for  only  ten  cadets,  but  in  1812  Congress  author 
ized  the  number  to  be  increased  to  two  hundred  and 
fifty.  The  present  corps  of  cadets  consists  of  one  from 
each  Congressional  District,  one  from  each  Territory, 
one  from  the  District  of  Columbia,  and  ten  from  the 
United  States  at  large ;  these  are  all  appointed  by  the 
President.  They  must  be  between  the  ages  of  seven 
teen  and  twenty-two,  and  pledge  themselves,  with  the 
consent  of  parents  or  guardians,  to  serve  eight  years 
unless  sooner  discharged. 

The  superintendent  and  most  of  the  instructors  are 
officers  of  the  army.  The  Academy  is  wholly  supported 
by  the  government,  an  allowance  being  made  to  each 
cadet  sufficient  to  pay  his  entire  expenses  of  clothing, 
board,  etc.  The  appropriation  voted  for  the  Academy 
for  the  year  ending  June  30th,  1878,  was  $293,000. 

By  act  of  July  loth,  1870,  the  army  officers  receive 
yearly  pay  as  follows; 

General,  $13,500.  Captain,  not  mounted,  $1800. 

Lieut, -General,  $11,000.  Regimental  Adjutant,  $1800. 

Major-General,  $7500.  Pvegimental  Q.  M.,  $1800. 

Brigadier-General,  $5500.  1st  Lieut.,  mounted,  $1600. 

Colonel,  $3500.  1st  Lieut.,  not   "        $1500. 

Lieut.-Colonel,  $3000.  2d  Lieut.,  mounted,  $1500. 

Major,  $2500.  2d  Lieut.,  not  "          $1400. 

Captain,  mounted,  $2000.  Chaplain,  $1500. 

To  each  commissioned  officer  below  the  rank  of  Brig 
adier-General,  the  pay  is  increased  ten  per  centum 
for  every  term  of  five  years  service,  but  the  increase  is 
not  to  exceed  forty  per  centum.  Officers  retired  from 


SECRETARIES  OF  THE  NAVY. 


339 


service  receive  seventy-five  per  centum  of  the  pay  of 
the  rank  upon  which  they  are  retired.  The  pay  of 
privates  is  thirteen  dollars  a  month,  with  one  dollar  a 
month  added  for  the  third  year  of  enlistment,  one  more 
for  the  fourth,  and  one  for  the  fifth.  The  officers  arc 
paid  monthlv. 

DEPARTMENT    OF   THE    NAVY. 

This  department  was  established  by  act  of  Congress, 
April  30th,  1798,  its  chief  officer  being  styled  the  Secre 
tary  of  the  Navy. 

In  1861  an  Assistant  Secretary  was  authorized,  but 
the  office  expired  March  4th,  1869. 

The  following  persons  have  been  Secretaries  of  the 
Navy : 

Mass.,   appointed   May  3,  1798. l 


George  Cabot, 

Benjamin  Stoddart,  Md., 

Robert  Smith,  Md., 

Jacob  Crowninshieid,  Mass., 

Paul  Hamilton,  S.  C., 

William  Jones,  Penn.5 

B.  W.  Crowninshield,  Mass., 


Smith  Thompson, 
John  Rodgers, 
Samuel  L.  Southard, 
John  Branch, 
Levi  Woodbury, 
Mahlon  Dickerson, 
James  K.  Paulding, 
George  E.  Badger, 
Abel  P.  Upshur, 
David  Henshaw, 
Thomas  W.  Gilmer, 
John  Y.  Mason, 


N.  Y.; 
Md, 

N.  J., 
N.  C., 
N.  H., 
N.  J , 
N.  Y, 
N.  C., 
Va., 
Mass., 
Va, 
Va.. 


May  21,  1798. 
July  15,  1801. 
March  2,  1805. 
March  7,  1809. 
Jan.  12,  1813. 
Dec.  17,  1814. 
Nov.  9,  1818. 
Sept.  1,  1823.1 
Sept.  16,  1823. 
March  9,  1829. 
May  23,  1831. 
June  30,  1834. 
June  30,  1838. 
March  5,  1841. 
Sept.  13,  1841.' 
July  24,  1843. 
Feb.  15,  1844. 
March  14, 1844. 


'Declined.         2  Killed,   February  28th,  on    U.   S.    Steam  Frigate 
Princeton,  by  bursting  of  a  cannon. 


340 


THE  EXECUTIVE  DEPARTMENT. 


George  Bancroft, 
John  Y.  Mason, 
William  B.  Preston, 
William  A.  Graham, 
John  P.  Kennedy, 
James  C.  Dobbin, 
Isaac  Toucey, 
Gideon  Welles, 
Adolph  E.  Borie, 
George  M.  Robeson, 
Rich'd  W.Thompson, 


Mass.,  appointed 
Va., 

Va,,  " 

N.  C., 
Md., 
N.  C., 

'  Conn.,         " 
Conn.,         " 
Penn.,         " 
N.  J., 
Ind., 


March  10, 1845. 
Sept.  9,  1846. 
March  7,  1849. 
July  20,  1850. 
July  22,  1852. 
March  7,  1853. 
March  6,  1857. 
March  5,  1861. 
March  5,  1869. 
June  25,  1869. 
Maroh  10,  1877. 


The  salary  of  the  Secretary  of  the  Navy  was  at  first 
$3000.  In  1799  it  was  made  $4500;  in  1819,  $6000;  in 
1853,  $8000;  in  1873,  610,000;  and  in  1874,  $8000. 

By  act  of- July  5th,  1862,  there  were  established  eight 
Bureaus  in  the  Navy  Department,  for  each  of  which  a 
chief  should  be  appointed  from  the  list  of  the  officers 
of  the  Navy  by  the  President.  These  chiefs  of  Bureaus 
hold  their  office  for  four  years. 

The  Bureau  of  Yards  and  Docks.-  -Vessels  are  built  and 
repaired  at  Navy  Yards,  of  which  the  government  has 
nine,  viz.,  at  Kittery,  Maine;1  Charlestown,  Mass.;1  New 
London,  Conn.;  Brooklyn,  N.  Y.;  League  Island,  Penn.; 
Washington,  D.  C.:  Norfolk,  Va.;  Pensacola,  Fla.;  and 
Mare  Island,  Cal.  There  are  Naval  Stations  at  Sack- 
ett's  Harbor,  N.  Y.,  and  at  Key  West,  Fla.  This  bureau 
has  charge  of  the  construction  and  maintenance  of  all 
docks,  piers,  etc.,  within  the  Navy  Yards.  It  has  charge 
also  of  the  Naval  Arsenals,  and  of  the  Naval  Asylum. 
The  expenditures  for  the  year  ending  June  30th,  1876, 
were  $1,712,000. 


1  The  Navy  Yard  at  Kittery,  Maine,  is  the  same  as  that  known 
as,  the  Portsmouth  (N.  H.)  Navy  Yard.  The  one  at  Charlestown  is 
often  spoken  of  :is  at  Boston.  Botli  names,  Boston  and  Charlestown, 
are  applied  to  the  same  Navy  Yard  in  the  same  statute.  U.  S.  Stat 
utes  at  Large,  XVII,  p.  552. 


DEPARTMENT  OF  THE  NAVY.  341 

The  Bureau  of  Equipment  and  Recruiting. — This  bureau 
supplies  vessels  in  commission  with  rigging,  sails,  anch 
ors,  fuel,  etc.  It  has  charge  of  recruiting  all  seamen, 
landsmen,  and  boys  for  the  service ;  and  the  charge 
also  of  receiving-ships  and  recruiting  rendezvous. 

The  Bureau  of  Navigation. — This  bureau  has  supervis 
ion  of  what  relates  to  the  Hydrographic  Oflice,  the  Naval 
Observatory,  the  Nautical  Almanac,  the  Signal  Office,  and 
Naval  Apprentices. 

The  Observatory  was  established  in  1842,  under  the 
name  of  "  Depot  for  Naval  Charts  and  Instruments." 
The  Superintendent  is  Rear-Admiral  John  Rodgers. 

The  Bureau  of  Ordnance. — To  this  bureau  belongs  the 
general  charge  of  providing  and  storing  guns  and  am 
munition  of  every  kind.  Under  its  direction  experi 
ments  are  made  to  test  new  species  of  ordnance  and 
ammunition.  The  subject  of  torpedoes  has  recently 
received  much  attention. 

The  Bureau  of  Medicine  and  Surgery. — There  are  eight 
naval  hospitals  and  one  laboratory  under  the  charge 
of  this  bureau,  which  also  furnishes  all  medical  sup 
plies  for  the  department. 

The  Bureau  of  Provisions  and  Clothing. — The  name  of 
this  bureau  indicates  its  duties. 

Bureau  of  Steam  Engineering. — All  that  pertains  to  the 
steam  machinery  by  which  vessels  are  impelled  comes 
under  the  charge  of  this  bureau. 

Bureau  of  Construction  and  Repair. — This  bureau  has 
charge  of  all  that  relates  to  planning,  building,  and 
repairing  vessels,  both  wood  and  iron,  as  distinct 
from  the  engines  and  machinery  by  which  they  are 
impelled. 

The  Naval  Academy. — This  institution,  which  sustains 
to  the  Navy  the  same  relation  the  Military  Academy  at 
West  Point  does  to  the  Army,  seems  not  to  have  been 
established  by  an  act  of  Congress,  but  to  have  been 
commenced  by  the  Navy  Department  without  formal 


342  THE  EXECUTIVE  DEPARTMENT. 

legislation.  The  first  action  of  Congress  regarding  it 
is  found  in  the  act  making  appropriations  for  the 
naval  service,  August  10th,  1846.  This  provides  that 
of  the  money  appropriated  for  "  pay  of  the  navy  "  and 
'•contingent  expenses  enumerated,"  an  amount  not  ex 
ceeding  $28,200  may  be  expended  under  the  direction 
of  the  Secretary  of  the  Navy  for  repairs,  improvements, 
and  instruction,  at  Fort  Severn,  Annapolis,  Maryland. 
In  March,  1847,  a  like  sum  was  appropriated  for  the 
same  purposes,  "and  for  the  purchase  of  land  for  the 
use  of  the  naval  school  at  that  place,  not  exceeding 
twelve  acres." 

The  students,  who  are  called  cadet-midshipmen,  must 
be,  when  appointed,  not  under  fourteen  years  of  age, 
nor  over  eighteen.  There  may  be  one  from  each  con 
gressional  district,  and  one  from  each  Territory,  with 
ten  at  large.  The  latter  are  appointed  by  the  Presi 
dent,  the  others  are  nominated  to  the  Secretary  of  the 
Navy  by  the  Representatives  and  Delegates  in  Congress. 
From  1862  to  1867  two  were  authorized  from  every  con 
gressional  district. 

The  course  of  study  has  been  four  years,  but  it  is  now 
changed  to  six,  commencing  with  the  class  entering  in 
1873.  They  become  midshipmen  on  graduating,  and 
are  promoted  to  ensigns  as  vacancies  occur,  promotion 
being  according  to  class  rank. 

A  course  of  study  has  been  provided  for  cadet- 
engineers,  to  be  appointed,  to  the  number  of  fifty, 
by  the  Secretary  of  the  Navy.  The  course  embraces 
four  years  of  study  at  the  Academy,  and  two  years  of 
service  in  naval  sea-steamers.  Their  pay  is  that  of 
midshipmen. 

The  appropriation  for  the  Naval  Academy  for  the 
year  ending  June  30th,  1874,  is  $193,457;  of  which 
$64,000  is  for  "contingent  expenses." 

The  yearly  pay  of  the  Officers  of  the  Navy  is  as 
follows : 


DEPARTMENT  OF  THE  NAVY. 


343 


On  leave,  or 
At  sea.         On  shore  duty.         waiting  orders. 

Admiral,  $13,000          $13,000  $13,000 

Vice-Admiral,          9,000  8,000  6,000 

Rear-Admiral,          6,000  5,000  4,000 

Commodore,    '          5,000  4,000  3,000 

Captain,  4,500  3,500  2,800 

Commander,  3,500  3,000  2,300 

Lieutenant-Corn.,     2,800  2,400  2,000 

Lieutenant,  2,400  2,000  1,600 

Master,  1,800  1,500  1,200 

Ensign,  1,200  1,000  800 

Midshipman,  1,000  800  600 

Surgeon,  Paymaster, 
and  Chief  Engineer,  2,800  2,400 

Fleet  Surgeon,  Pay 
master,  and  Chief 

Engineer,  4,400  4,400 

Passed  Ass't  Surgeon, 
Paymaster,  and 

Chief  Engineer,          2,000  1,800 

Assistant  Surgeon, 
Paymaster,  and 

Chief  Engineer,          1,700  1,400 

Chaplain,  2,500  2,000 

Professor  of  Mathe 
matics,  and  Civil 
Engineer,  2,400  2,400 

Most  of  those  who  are  below  the  grade  of  Command 
ers  have  their  pay  increased  after  five  years  of  service 
by  from  $200  to  $400  a  year;  with  some  this- increase  is 
but  once,  but  with  others  the  pay  is  increased  at  the 
end  of  each  five  years  up  to  twenty. 

The  pay  of  officers  retired  after  forty  years'  service,  or 
on  attaining  the  age  of  sixty-two  years,  or  from  inca 
pacity  resulting  from  long  and  faithful  service,  from 
wounds  or  injuries  received  in  the  line  of  duty,  or  from 


2,000 


4,400 


1,500 


1,000 
1,600 


1,500 


344  THE  EXECUTIVE  DEPARTMENT. 

sickness  or  exposure  therein,  is  seventy-five  per  centum 
of  the  sea-pay  of  their  grade  when  retired;  in  all  other 
cases  the  pay  of  retired  officers  is  one-half  the  sea-pay. 

The  pay  of  "  seamen  "  in  the  navy  is  twenty  dollars 
a  month;  of  "ordinary  seamen,"  sixteen  dollars;  of 
"  landsmen,"  fourteen  dollars ;  of  "  boys,"  from  eight  to 
ten  dollars. 

Until  September,  1862,  a  spirit  ration  was  allowed  in 
the  navy;  from  that  time  it  was  abolished,  and  five 
cents  a  day  allowed  in  place  of  it.  This  allowance  was 
abolished  from  June  30th,  1870.  Thirty  cents  a  day  is 
now  the  commutation  price  of  a  navy  ration. 

DEPARTMENT    OF    THE    INTERIOR. 

This  department  was  established  by  act  of  Congress, 
March  3d,  1849.  The  act  is  entitled  "An  Act  to  estab 
lish  the  Home  Department."  A  department  was  pro 
posed  under  that  name  in  1789.  The  duties  of  the 
department  relate  to  various  offices  which  have  been 
transferred  to  it  from  other  departments.  It  is  less 
homogeneous,  therefore,  than  the  others. 

At  its  establishment  the  Patent  Office  and  the  Census 
Office  were  transferred  to  it  from  the  Department  of 
State;  the  Land  Office,  the  charge  of  Mines,  and  the  ac 
counts  of  officers  of  the  Courts,  from  the  Department  of 
the  Treasury;  the  charge  of  Indian  affairs  from  the 
Department  of  War;  the  charge  of  Pensions  from  the 
Departments  of  War  and  the  Navy;  and  the  care  of 
Public  Buildings  from  the  President.  Subsequently  it 
was  charged  with  the  duty  of  receiving  and  distribu 
ting  public  documents,  and  with  duties  relating  to  Ter 
ritories,  which  had  been  performed  by  the  State  De 
partment.  The  Department  of  Education,  which  was 
at  first  independent,  has  been  made  an  office  in  this 
department. 

The  salary  has  been  the  same  as  the  other  Secre 
taries  have  received,  being  now  $8000.  An  Assistant 


DEPARTMENT  OF  THE  INTERIOR.  345 

Secretary  was  authorized  in   1862.     His   compensation 
is  now  $3500. 

The  Secretaries  have  been  as  follows : 
Thomas  Ewing,  Ohio,  appointed  March  7,  1849. 

Alexander  H.  H.  Stuart,  Va.,  "          Sept,    12,1850. 

Robert  McClelland,  Mich.,        "  March  7,  1853. 

Jacob  Thompson,  Miss.,  March  6,  1857.1 

Caleb  B.  Smith,  Ind.,  "          March  5,  1861. 

John  P.  Usher,  Ind.,  "          Jan.  8,  1863. 

James  Harlan,  Iowa,         "          May  15,  1865. 

Orville  H.  Browning,       111.,  «          July  27,  1866. 

Jacob  D.  Cox,  Ohio,          "  March  5,  1869. 

Columbus  Delano,  Ohio,         "          Nov.  1?  1870. 

Zachariah  Chandler,         Mich.,        "          Oct.  19,  1875. 
Carl  Schurz,  Mo.,  "  March  10, 1877. 

The  Patent  Office. — This  bureau  is  under  the  superin 
tendence  of  a  Commissioner,  who  is  assisted  by  an  As 
sistant  Commissioner.  There  is  a  large  corps  of  Exam 
iners,  Assistant  Examiners,  Clerks,  Copyists,  and  Labor 
ers  employed  in  the  Patent  Office.  Besides  the  charge 
of  this  large  force,  the  Commissioner  has  a  large  amount 
of  judicial  work  to  perform — in  hearing  and  deciding 
cases  relating  to  patents.  The  Commissioner  receives 
$4500,  and  the  Assistant  Commissioner  $3000,  a  year. 

The  Pension  Office.— By  act  of  March  3d,  1835,  the  of 
fice  of  Commissioner  of  Pensions  was  created  for  two 
years.  It  was  extended  from  time  to  time,  and  made 
permanent  in  1849.  He  was  to  execute,  under  the  di 
rection  of  the  Secretaries  of  War  and  the  Navy,  such 
duties  in  relation  to  the  various  pension  laws  as  might 
be  prescribed  by  the  President. 

The  provisions  relating  to  pensions  are  too  numerous 
and  complicated  to  allow  of  a  clear  statement  regarding 
them  in  this  treatise.  An  act  was  passed  March  3d 


1  Resigned  January  8th,  1861. 


346  THE   EXECUTIVE  DEPARTMENT. 

1873,  to  revise,  consolidate,  and  amend  the  laws  relating 
to  the  general  subject.  The  salary  of  the  Commissioner 
is  $3600. 

The  Land-Office.  —  The  public  lands  of  the  United 
States  which  are  for  sale  are  under  the  care  of  an  officer 
styled  the  Commissioner  of  the  General  Land-Office. 
This  office  was  created  in  1812,  and  it  was  made  the 
duty  of  the  Commissioner  to  attend  to  various  matters 
touching  the  public  lands  which  had  before  that  been 
transacted  in  the  several  departments  of  State,  of  the 
Treasury,  and  of  War.  The  Land-Office  was  placed  in 
the  Department  of  the  Treasury  till,  on  the  creation  of 
that  of  the  Interior,  in  1849,  it  was  transferred  to  that 
department.  The  Commissioner's  salary  is  $4000. 

The  principal  officers  under  the  Commissioner  are : 
Surveyors  General, 
Registers  of  Land-Offices, 
Receivers  of  Land-Offices. 

There  are  now  seventeen  Surveyors-General,  one  in 
each  land  district.  Under  their  direction  all  the  land 
is  accurately  surveyed  and  described,  and  thus  prepared 
for  sale.  The  United  States  system  of  surveys  provides 
for  the  division  of  the  lands  into  ranges,  townships,  sec 
tions,  and  fractions  of  sections.  The  ranges  are  bounded 
by  meridian  lines,  six  miles  apart,  and  are  numbered 
east  and  west  from  a  principal  meridian.  These  are 
divided  into  townships,  of  six  miles  square,  numbered 
north  and  south  from  a  given  parallel.  Townships 
are  divided  into  thirty-six  sections  of  one  mile  square, 
or  six  hundred  and  forty  acres.  The  sections  are  di 
vided  into  quarters,  which  are  again  subdivided  into 
sixteenths. 

The  sections  in  a  township  are  numbered,  beginning 
at  one  in  the  north-east  section,  and  proceeding  West 
and  East  alternately,  as  indicated  in  the  annexed  dia 
gram.  The  description  of  land  is  thus  made  exact  to 


DEPARTMENT  OF  THE   INTERIOR. 


347 


6 

5 

4 

3 

2 

1 

7 

8 

9 

10 

11 

12 

18 

17 

16 

15 

14 

13 

19 

20 

21 

22 

23 

24 

30 

29 

28 

27 

26 

25 

31 

32 

33 

34 

35 

36 

tracts  of  forty  acres ;  as,  the  N.  W.  J  of  the  N.  E.  J  of 
Section  19,  Town  27  North,  Range  18  West. 

Registers  are  appointed 
in  the  several  land  dis 
tricts,  who  receive  appli 
cations  for  lands  in  their 
districts,  file  receipts  for 
payments,  and,  on  the 
final  payment,  give  to 
the  purchaser  a  certificate 
which  entitles  him  to  a 
patent,  i.  e.,  a  deed  from 
the  United  States.  For 
merly  the  patent  was 
signed  by  the  President,  and  countersigned  by  the  Sec 
retary  of  State;1  now  a  secretary  is  appointed  by  the 
President,  who  signs  patents  in  his  name,  and  they 
are  countersigned  by  the  Recorder. 

The  government  price  of  land  is  one  dollar  and  a 
quarter  an  acre.  Previous  to  1800  the  price  was  two 
dollars.  For  alternate  reserved  lands  along  the  line  of 
railroads  within  the  limits  granted  by  any  act  of  Con 
gress,  the  price  is  two  dollars  and  fifty  cents  an  acre. 
From  1854  to  1862  land  long  in  market  was  sold  at  re 
duced  rates.  The  sale  of  mineral  lands  is  regulated  by 
special  laws. 

The  Receiver  receives  money  or  land-scrip  from  the 
purchaser,  giving  receipts  therefor,  which  are  passed 
over  to  the  Register. 

The  Register  and  Receiver  are  largely  paid  by  fees, 
but  the  whole  compensation  must  not  exceed  $3000. 
The}71  are  entitled  to  fees  in  cases  of  military  warrants 
and  homestead  entries,  as  in  other  cases. 


1  Three  patents  to  the  Ohio  Company  for  1,228,168  acres,  dated  May 
10th,  1792,  are  signed  by  G°  "Washington,  and  countersigned  by  Th: 
Jefferson.  These  patents,  the  first  issued  by  the  government  to  a  pur 
chaser,  are  in  the  library  of  Marietta  College. 


348  THE  EXECUTIVE  DEPARTMENT. 

The  Commissioner  of  Indian  Affairs.—  Until  1832  the 
business  of  the  government  relating  to  the  Indians  had 
been  managed  by  the  clerks  in  the  War  Department. 
In  that  year  Congress  authorized  the  President  to  ap 
point  a  Commissioner,  who  should,  under  the  direction 
of  the  Secretary  of  War,  have  the  general  superintend 
ence  of  all  Indian  affairs. 

The  Commissioner  has  the  direction  of  the  eight  Su 
perintendents,  and  a  large  number  of  agents  and  sub- 
agents,  under  whom  are  many  teachers,  mechanics,  la 
borers,  etc.  The  salary  of  the  Commissioner  is  $3000. 

The  Superintendent  of  the  Census. — The  census  is  taken 
once  in  ten  years.  The  office  of  Superintendent  is 
not  permanent,  therefore;  but  its  duties  are  highly 
responsible,  and  require  great  accuracy  and  system. 
The  census  returns  are  of  great  value.  The  salary  of 
the  Superintendent  is  $3000. 

The  Bureau  of  Education.— In  1867  "  a  Department  of 
Education"  was  established  at  Washington,  for  the 
purpose  of  collecting  statistics  showing  the  condition 
and  progress  of  education  in  the  States  and  Territories, 
and  of  diffusing  such  information  as  should  promote 
the  cause  of  education  throughout  the  country.  In 
1868  Congress  enacted  that  "  the  Department  of  Edu 
cation"  should  cease,  and  that  there  should  be  estab 
lished  and  attached  to  the  Department  of  the  Interior 
an  office  to  be  denominated  The  Office  of  Education, 
the  chief  officer  of  which  should  be  styled  the  Com 
missioner  of  Education,  who  should  perform  the  duties 
before  prescribed.  His  salary  is  $3000. 

THE    DEPARTMENT   OF    AGRICULTURE. 

In  1862  a  Department  of  Agriculture  was  established 
at  Washington,  the  object  of  which  was  to  acquire  and 
diffuse  among  the  people  useful  information  on  subjects 
connected  with  Agriculture.  The  chief  officer  was 
styled  a  Commissioner  of  Agriculture.  Among  other 


THE  GENERAL  POST-OFFICE.  349 

things  it  was  provided  that  he  should  "  receive  and 
have  charge  of  all  the  property  of  the  agricultural 
division  of  the  Patent  Office  in  the  Department  of  the 
Interior,  including  the  fixtures  and  property  of  the 
propagating  garden." 

There  seems  to  be  no  more  reason  for  calling  this  a 
"department"  than  in  the  case  of  the  Office  of  Educa 
tion.  In  his  message  of  1871  the  President  speaks  of  it 
in  one  sentence  as  a  "department"  and  in  another  as 
the  "Agricultural  Bureau."  For  many  years  previous 
to  1862,  the  Patent  Office  Report  was  partly  devoted  to 
agricultural  facts  and  statistics. 

It  is  noticed  here,  because,  though  nominally  inde 
pendent,  it  might  well  be  considered  a  Bureau  of  the 
Department  of  the  Interior.  The  salary  of  the  Com 
missioner  is  83000. 

Miscellaneous. — The  Secretary  of  the  Interior  has  the 
general  charge  of  the  Penitentiary  in  the  District  of 
Columbia,  and  of  those  in  the  Territories.  The  follow 
ing  act  was  passed  in  March,  1873 :  "  That  the  Secre 
tary  of  the  Interior  shall  hereafter  exercise  all  the 
powers  and  perform  all  the  duties  in  relation  to  the 
Territories  of  the  United  States  that  are  now  by  law 
or  by  custom  exercised  and  performed  by  the  Secretary 
of  State." 

POST-OFFICE    DEPARTMENT. 

There  were  arrangements  for  carrying  letters  by  mail 
before  the  colonies  separated  from  the  mother  country. 
Dr.  Benjamin  Franklin  had  the  general  superintend 
ence  under  the  British  government,  and  in  July,  1775, 
he  was  appointed,  by  the  Second  Continental  Congress, 
"  Postmaster-General  of  the  United  Colonies."  When 
the  Constitution  went  into  operation,  Congress,  by  act 
of  September  22d,  1789,  provided  for  the  "temporary 
establishment  of  the  Post-office,"  the  regulations  to  be 
"the  same  as  they  last  were  under  the  resolutions  and 
ordinances  of  the  late  Congress." 


350  THE  EXECUTIVE  DEPARTMENT. 

In  1792  an  act  was  passed  to  establish  a  General 
Post-office.  There  was  to  be  a  Postmaster-General,  who 
should  have  power  to  appoint  an  Assistant,  and  Deputy 
Postmasters  at  all  places  where  such  should  be  found 
necessary;  he  was  also  "to  superintend  the  business 
of  the  department "  in  all  the  duties  that  should  be 
assigned  to  it.  This  act  was,  indeed,  limited  to  two 
years,  but  in  1794  a  similar  one  was  enacted,  which 
had  no  limitation  of  time.  We  may  say,  therefore,  that 
the  Post-office  Department  has  been  in  operation  from 
the  first  Congress  under  the  Constitution.1  An  act  to 
revise,  consolidate,  and  amend  the  statutes  relating  to 
the  Post-office  Department,  containing  three  hundred 
and  twenty-seven  sections,  was  passed  June  8th,  1872. 
The  Salary  of  the  Postmaster-General  was  $2000  in  1792, 
$3000  in  1799,  $4000  in  1819,  $6000  in  1827,  $8000  in 
1853,  $10,000  in  1873.  and  $8000  in  1874. 

It  is  said  that  the  Postmaster-General  did  not  attend 
the  meetings  of  the  Cabinet  prior  to  the  administra 
tion  of  President  Jackson,  who  invited  Mr.  Barry  to  be 
present  at  their  meetings.  The  practice  has  been  con 
tinued  from  that  time. 

The  list  of  Postmasters-General  is  as  follows : 

Samuel  Osgood,  Mass.,  appointed  Sept.  26,  1789. 

Timothy  Pickering,  Mass.,  "            Aug.  12,  1791. 

Joseph  Habersham,  Ga.,  "            Feb.  25,  1795. 

Gideon  Granger,  Conn.,  "            Nov.  28,  1801. 


1  Mr.  Gil  let,  in  his  work  on  The  Federal  Government,  says  :  "  There 
has  never  been  any  statute  establishing  a  Post-office  Department.  *  * 
It  is  first  spoken  of  as  a  Post-office  Department  in  the  title  of  an  act 
in  1825."  But  that  title  itself  is,  "An  Act  to  reduce  into  one  the 
several  acts  establishing  and  regulating  the  Post-office  Department." 
This  very  title  thus  asserts  that  previous  acts  had  established  such  a 
department.  We  have  seen  above  that  the  General  Post-office  was 
called  a  "  department"  in  the  act  of  1792.  An  act  of  March,  3d,  1801, 
speaks  "of  the  several  departments  of  the  Treasury,  of  War.  of  the 
Navy,  and  of  the  General  Post-office." 


GENERAL   POST-OP^FICE. 


351 


Return  J.  Meigs,  Jr. 
John  McLean, 
William  T.  Barry, 
Amos  Kendall, 
John  M.  Niles, 
Francis  Granger, 
Charles  A.Wickliffe, 
Cave  Johnson, 
Jacob  Collamer, 
Nathan  K.  Hall, 
Samuel  D.  Hubbard, 
James  Campbell, 
Aaron  V.  Brown, 
Joseph  Holt, 
Horatio  King, 
Montgomery  Blair, 
William  Dennison, 
Alexander  W.  Randall, 
John  A.  J.  Creswell, 
Marshall  Jewell, 
James  M.  Tyner, 
David  M.  Key, 

There  are  three  Assistant  Postmasters-General;  the 
Postmaster-General  appointed  them  until  1853;  since 
then  the  President  and  Senate.  The  salary  is  $3500. 

The  First  Assistant  Postmaster- General  has  the  superin 
tendence  of  matters  relating  to  the  establishment  and 
discontinuance  of  post-offices,  the  appointment  and  re 
moval  of  postmasters,-  furnishing  blanks  and  stationery, 
steamship  lines,  and  international  postage.  His  office 
is  called  the  Appointment  Office. 

Under  the  charge  of  the  Second  Assistant  Postmaster- 
General  belongs  whatever  relates  to  letting  contracts 
for  carrying  the  mails,  the  mode  of  conveyance,  the 
time  of  arrival  and  departure,  offices  of  distribution, 
etc.  This  is  known  as  the  Contract  Office 


Ohio, 

appointed 

March  17,  1814. 

Ohio, 

u 

June  26,  1823. 

Ky, 

u 

March  9,  1829. 

Ky, 

a 

May  1,  1835. 

Conn., 

a 

May  25,  1840. 

N.  Y., 

it 

March  6,  1841. 

Ky., 

a 

Sept.  13,  1841. 

Tenn., 

it 

March  5,  1845. 

Vt., 

u 

March  7,  1849. 

N.  Y., 

it 

July  20,  1850. 

Conn., 

it 

Aug.  31,  1852. 

Perm., 

It 

March  7,  1853. 

Tenn., 

it 

March  6,  1857. 

Ky, 

It 

March  14,  1859. 

N.  H, 

It 

Feb.  12,  1861. 

Md., 

it    . 

March  5,  1861. 

Ohio, 

tl 

Sept.  24,  1864, 

Wis., 

it 

July  25,  1866. 

Md., 

It 

March  5,  1869. 

Conn., 

u 

Aug.  24,  1874. 

Ind., 

it 

July  18,  1876. 

Tenn., 

It 

March  10,  1877. 

352  THE  EXECUTIVE  DEPARTMENT. 

The  Third  Assistant  Postmaster- General  has  charge  of 
the  general  financial  business  of  the  department,  pro 
vides  stamps  and  stamped  envelopes,  receives  the  quar 
terly  returns  from  Postmasters,  and  superintends  the 
dead-letter  office.  This  is  the  Finance  Office. 

The  office  of  the  Superintendent  of  the  Money-order 
System  is  now  a  bureau,  like  the  three  just  mentioned, 
with  its  chief  clerk.  The  salary  of  the  head  of  this 
bureau  is  $3000. 

In  the  office  of  the  Superintendent  of  Foreign  Mails 
there  is  also  a  chief  clerk.  The  salary  of  the  Superin 
tendent  is  $3000. 

There  are  six  Chief  Clerks,  viz.,  in  the  Post-office  De 
partment,  in  the  Appointment  Office,  in  the  Contract 
Office,  in  the  Finance  Office,  in  the  Money-order  Office, 
and  in  the  Office  of  Foreign  Mails.  Formerly  there 
was  but  one  — in  the  Post-office  Department  — and  his 
office  was  regarded  as  a  bureau,  and  called  the  Inspection 
Office.  He  is  now  the  clerk  for  the  Postmaster-General, 
as  the  others  are  for  the  heads  of  the  bureaus. 

DEPARTMENT   OF    JUSTICE. 

This  department  was  created  by  act  of  Congress, 
June  22d,  1870.  The  Attorney-General  is  the  head  of 
it.  While  the  Department  of  Justice  has  been  quite 
recently  established,  the  office  of  Attorney-General  was 
created  in  1789;  and  this  officer,  though  without  a 
"department,"  has  always  been  recognized  as  a  mem 
ber  of  the  Cabinet. 

The  act  of  September  24th,  1789,  made  it  his  duty 
to  prosecute  and  conduct  all  suits  in  the  Supreme 
Court  in  which  the  United  States  should  be  concerned, 
and  to  give  his  advice  and  opinion  upon  questions  of 
law  when  required  by  the  President,  or  when  requested 
by  the  heads  of  any  of  the  departments  touching  any 
matters  concerning  their  departments. 

These  opinions  are  furnished  in  writing,  and  subse- 


DEPARTMENT  OF  JUSTICE.  353 

quently  printed.  They  now  form  many  volumes,  and 
are  consulted  by  the  various  departments. 

In  1861  he  was  charged  with  the  general  superintend 
ence  of  the  attorneys  and  marshals  of  all  the  judicial 
districts  in  the  United  States  and  the  Territories. 
He  was  also  authorized  to  employ  counsel  to  aid  dis 
trict-attorneys  in  the  discharge  of  their  duties.  He 
examines  the  title  of  lands  which  the  government 
proposes  to  purchase  for  forts,  dock-yards,  custom 
houses,  or  other  public  purposes. 

In  1859  the  Attorney-General  was  authorized  to  ap 
point  an  Assistant.  In  1868  Congress  provided  that, 
in  place  of  this  and  three  other  officers,  the  President 
should  appoint  two  Assistant  Attorneys-General. 

Though  the  Attorney-General  had  a  seat  in  the 
Cabinet  from  the  first,  his  salary  was  much  below 
the  others.  It  was  fixed,  in  1789,  at  $1500  — that  of 
the  Secretary  of  War  being  $3000,  and  those  of  the 
Secretaries  of  State  and  the  Treasury,  $3500.  In  1797, 
it  was  made  $2000;  in  1799,  $3000;  in  1819,  $3500;  in 
1830,  $4000;  and  in  1850  it  was  made  equal  to  lhat  of 
the  other  members  of  the  Cabinet— $6000.  In  1853  it 
was  made  $8000;  in  1873,  §10,000;  and  in  1874,  $8000. 

The  following  persons  have  held  the  office  of  Attor 
ney-General  : 

Edmund  Randolph,  Va.,     appointed,    Sept.  26,  1789. 

William  Bradford,  Penn.,  "  Jan.  28,  1794. 

Charles  Lee,  Va.,  «  Dec.  10,  1795. 

Theophilus  Parsons,  Mass.,  "  Feb.  20,  1801. 

Levi  Lincoln,  Mass.,  "  March  5,  1801. 

Robert  Smith,  Md.,  March  2,  1805. 

John  Breckenridge,  Ky.,  "  Aug.  7,  1805. 

Caesar  A.  Rodney,  Del.,  Jan.  20,  1807. 

William  Pinckney,  Md.,  "  Dec.  11,  1811. 

Richard  Rush,  Penn.,  "  Feb.  10,  1814. 

William  Wirt,  Va.,  "  Nov.  13,  1817. 
C.  G.  30. 


354 


THE  EXECUTIVE  DEPARTMENT. 


J.  McPherson  Berrien,  Ga.,      appointed    March  9,  1829 


Roger  B.  Taney,  Md., 

Benjamin  F.  Butler,  N.  Y., 

Felix  Grundy,  Tenn., 

Henry  D.  Gilpin,  Penn., 

John  J.  Crittenden,  Ky., 

Hugh  S.  Legare,  S.  C., 

John  Nelson,  Md., 

John  Y.  Mason,  Va., 

Nathan  Clifford,  Maine, 

Isaac  Toucey,  Conn., 

Reverdy  Johnson,  Md., 

John  J.  Crittenden,  Ky., 

Caleb  Gushing,  Mass., 

Jeremiah  S.  Black,  Penn., 

Edwin  M.  Stanton,  Penn., 

Edward  Bates,  Mo., 

James  Speed,  Ky., 

Henry  Stanbery,  Ohio, 

William  M.  Evarts,  N.  Y., 

E.  R.  Hoar,  Mass., 

Amos  T.  Akerman,  Ga., 

Geo.  H:  Williams,  Oregon, 

Edwards  Pierrepont,  N.  Y., 

Alphonso  Taft,  Ohio, 
Charles  Devens, 


July  20,  1831. 
Nov.  15,  1833. 
Sept.  1,  1838. 
Jan.  10,  1840. 
March  5,  1841. 
Sept.  13,  1841. 
July  1,  1843. 
March  5,  1845. 
Oct.  17,  1846. 
June  21,  1848. 
March  7,  1849. 
July  20,  1850. 
March  7,  1853. 
March  6,  1857. 
Dec.  20,  1860. 
March  5,  1861. 
Dec.  14,  1864. 
July  23,  1866. 
July  15,  1868. 
March  5,  1869, 
July  8,  1870. 
Jan.  9,  1872. 
April  26,  1875. 
May  22,  1876. 
March  10,  1877. 


Mass., 

The  Solicitor-General  is  next  in  rank  to  the  Attor 
ney-General.  The  act  of  1870  continued  the  two 
Assistant  Attorneys-General  already  authorized  by  the 
act  of  1868.  The  act  also  transferred  to  the  Department 
of  Justice  the  Solicitor  of  the  Treasury  and  his  assist 
ants,  and  the  Solicitor  of  Internal  Revenue,  from  the 
Treasury  Department,  the  Naval  Solicitor  from  that  of 
the  Navy,  and  the  Examiner  of  Claims  from  the  De 
partment 'of  State.  All  these  officers  were  to  be  ap 
pointed  by  the  President  and  Senate. 


DEPARTMENT  OF  JUSTICE.  355 

The  Attorney-General  makes  an  annual  report  to 
Congress.  He  may  require  any  officer  of  the  depart 
ment  to  perform  any  duties  required  of  the  department 
or  any  officer  thereof;  and  the  officers  of  the  law  depart 
ment,  under  his  direction,  shall  give  all  opinions  and 
render  all  services  necessary  to  enable  the  President 
and  the  officers  of  the  Executive  Department  to  dis 
charge  their  duties.  The  Secretaries  of  the  various 
departments  are  not  to  employ  counsel  at  the  expense 
of  the  United  States,  but  to  call  upon  the  Department 
of  Justice  for  the  legal  service  they  need. 

In  1871  a  third  Assistant  Attorney-General  was  au 
thorized,  with  the  same  salary  as  the  others.  There  is 
now  a  fourth,  called  the  Assistant  Attorney-General  of 
the  Post-office  Department. 

The  following  are  the  principal  officers  in  the  Depart 
ment  of  Justice,  with  their  salaries  : 

At  tor  ney-G  e  n  eral,  $8 ,000. 

Solicitor-General,  7,000. 

Assistant  Attorney-General,  5.000. 

Ass't  Att.-Gen.  at  the  Court  of  Claims,  5,000. 
Ass't  Att.-Gen.  in  the  Department  of  the  Interior,  5,000. 

Ass't  Att.-Gen.  in  the  Post-office  Department,  4,000. 

Solicitor  of  Internal  Revenue,  4,500. 

Naval  Solicitor,  3,500. 

Examiner  of  Claims,  3,500. 

Solicitor  of  Treasury,  4,500. 

Assistant  Solicitor,  3,000. 

There  are  many  persons  employed  in  the  various 
departments  at  Washington,  under  different  designa 
tions,  as  Clerks,  Copyists,  Messengers,  Laborers,  etc. 
The  great  body  of  Clerks  are  divided  into  classes 
known  as  first,  second,  third,  and  fourth.  The  first 
class  receive  $1200  a  year;  the  second,  $1400;  the  third, 
$1600;  and  the  fourth,  $1800.  There  are  a  few  who,  as 
Disbursing  Clerks,  or  Chiefs  of  Divisions,  etc.,  receive 


356  THE  JUDICIAL  DEPARTMENT. 

from  $2000  to  $2800.  The  Examiners-in-chief  in  the 
Patent-office  receive  $3000;  the  Examiners — twenty 
or  more  —  $2500.  Female  Clerks  and  Copyists  gener 
ally  receive  $900  a  year.  Messengers,  $840;  Assistant 
Messengers,  Watchmen,  and  Laborers,  $720. 

THE    JUDICIARY. 

A  full  account  of  the  United  States  Courts  has  been 
given  in  a  former  part  of  this  work. 

The  following  is  a  list  of  Chief  Justices  of  the  Su 
preme  Court  of  the  United  States : 

JOHN  JAY,  New  York,  appointed  September  26th, 
1789.  He  was  confirmed  Envoy  Extraordinary  to  Eng 
land,  April  19th,  1794.  Resigned  as  Chief  Justice. 

JOHN  RUTLEDGE,  South  Carolina,  appointed  July  1st, 

1795,  in  recess  of  Senate,  and   presided  at  the  August 
term  of  the  Court.     Rejected  by  the  Senate,  December 
15th,  1795. 

WILLIAM  GUSHING,  Massachusetts,  appointed  by  Presi 
dent  and  Senate,  January  27th,  1796.     Declined. 
OLIVER  ELLSWORTH,  Connecticut,  appointed  March  4th, 

1796.  Appointed  Envoy  Extraordinary  and    Minister 
Plenipotentiary  to   France,   February  27th,  1799.      Re 
signed  as  Chief  Justice. 

JOHN  JAY,  New  York,  appointed  by  President  and 
Senate,  December  19th,  1800.  Declined. 

JOHN  MARSHALL,  Virginia,  appointed  January  31st, 
1801.  He  held  the  office  nearly  thirty-five  years,  till 
his  death,  July  6th,  1835. 

ROGER  B.  TANEY,  Maryland,  appointed  March  15th, 
1836.  He  presided  twenty-eight  years,  till  his  death, 
October  12th,  1864. 

SALMON  P.  CHASE,  Ohio,  appointed  December  6th, 
1864.  Died  in  office,  May  7th,  1873. 

MORRISON  R.  WAITE,  Ohio,  appointed  January  21st, 
1874. 


ASSOCIATE  JUSTICES  OF  THE  SUPREME  COURT.      357 

The  following  is  a  list  of  the  Associate  Justices: 

Term  of 


John  Rutledge, 

S.  C., 

1789  to  1791.1 

William  Gushing, 

Mass.. 

1789  to  1810.2 

James  Wilson, 

Penn., 

1789  to  1798.2 

John  Blair, 

Va., 

1789  to  1796.1 

Robert  H.  Harrison, 

Md., 

1789  to  1790.1 

James  Iredell, 

N.  C., 

1790  to  1799.2 

Thomas  Johnson, 

Md., 

1791  to  1793.' 

William  Patterson, 

N.  J., 

1793  to  1806.2 

Samuel  Chase, 

Md., 

1796  to  1811.2 

Bushrod  Washington, 

Va, 

1798  to  1829.1 

Alfred  Moore, 

N.  C, 

1799  to  1804.1 

William  Johnson, 

"8.  C, 

1804  to  1834.2 

Brockholst  Livingston, 

N.  Y, 

1806  to  1823.2 

Thomas  Todd, 

Ky, 

1807  to  1826.2 

Levi  Lincoln, 

Mass., 

Declined. 

John  Quincy  Adams, 

Mass., 

Declined. 

Gabriel  Duval, 

Md, 

1811  to  1835.1 

Joseph  Story, 

Mass., 

1811  to  1845.2 

Smith  Thompson, 

N.  Y, 

1823  to  1843.2 

Robert  Trimble, 

Ky, 

1826  to  1828,2 

John  McLean, 

Ohio, 

1829  to  1861.2 

Henry  Baldwin, 

Penn, 

1830  to  1846.2 

James  M.  Wayne, 

Ga, 

1835  to  1867.2 

Philip  P.  Barbour, 

Va, 

1836  to  1841.2 

John  Catron, 

Term., 

1837  to  1865.2 

William  Smith, 

Ala,  ' 

Declined. 

John  McKinley, 

Ala, 

1837  to  1852.2 

Peter  V.  Daniel, 

Va, 

1841  to  I860.2 

Samuel  Nelson, 

N.  Y, 

1845  to  1872.3 

Levi  Woodbury, 

N.H, 

1845  to  1851.2 

Robert  C.  Grier, 

Penn., 

1846  to  1870.3 

Benjamin  R.  Curtis, 

Mass., 

1851  to  1857.1 

John  A.  Campbell, 

Ala., 

1853  to  1856.1 

Resigned.         2  Died.         3  Resigned,  with  salary  continued. 


358  THE  JUDICIAL  DEPARTMENT. 

Term  of 

Nathan  Clifford,  Maine  1858  to  - 

Noah  H.  Swayne,  Ohio,  1862  to  - 

Samuel  F.  Miller,  Iowa,  1862  to  - 

David  Davis,  111.,  1862  to  1877.1 

Stephen  J.  Field,  CaL,  1863  to .       * 

William  Strong,  Perm.,  1870  to  - 

Joseph  P.  Bradley,  N.  J.,  1870  to  — 

Ward  Hunt,  N.  Y.,  1872  to  - 

John  M.  Harlan,  Ky.,  1877  to  - 

The  thirty-eight  States  are  divided  into  nine  Judi 
cial  Circuits,  each  having  its  own  Circuit  Judge,  and  to 
each  one  of  which  a  Justice  of  the  Supreme  Court  is 
allotted  by  order  of  that  Court.  The  Circuits  are  as 
follows : 

1st.  Maine,  Massachusetts,  New  Hampshire,  Rhode 
Island. 

2d.  Connecticut,  New  York,  Vermont. 

3d.  Pennsylvania,  New  Jersey,  Delaware. 

4th.  Maryland,  West  Virginia,  Virginia,  North  Caro 
lina,  South  Carolina. 

5th.  Georgia,  Florida,  Alabama,  Mississippi,  Louisi 
ana,  Texas. 

6th.  Ohio,  Michigan,  Kentucky,  Tennessee. 

7th.  Indiana,  Illinois,  Wisconsin. 

8th.  Minnesota,  Iowa,  Missouri,  Kansas,  Arkansas, 
Nebraska,  Colorado. 

9th.  California,  Oregon,  Nevada. 

The  Judges  of  the  Circuits  are  as  follows : 

Circuit.  Supreme  Judge.  Circuit  Judge. 

1st.  Nathan  Clifford,  George  F.  Shepley. 

2d.  Ward  Hunt,  Samuel  Blatchford. 

3d.  William  Strong,  William  McKennan, 

4th.  Chief  Justice,  Hugh  L.  Bond. 


1  Resigned,  March,  1877. 


COMPENSATION  OF  JUDGES.  359 

Circuit.  Supreme  Judge.  Circuit  Judge. 

5th.  Joseph  P.  Bradley,  William  B.  Woods. 

6th.  Noah  H.  Swayne,  John  Baxter. 

7th.  John  M.  Harlan,  Thomas  Drummond. 

8th.  Samuel  F.  Miller,  John  F.  Dillon. 

9th.  Stephen  J.  Field,  Lorenzo  Sawyer. 

The  salary  of  the  Chief  Justice  of  the  Supreme  Court 
is  $10,500;  that  of  each  Associate  Justice,  $10,000.  The 
Circuit  Judges  receive  each  §6000,  and  the  District 
Judges,  fifty-one  in  numher,  from  $3500  to  $5000  each. 
The  Chief  Justice  of  the  Supreme  Court  of  the  District 
of  Columbia  receives  $4500,  and  each  of  the  Associate 
Justices  the  same  sum ;  the  same  salaries  are  paid  in 
the  Court  of  Claims. 

In  each  organized  Territory  there  are  a  Chief  Justice 
and  two  Associates,  appointed  by  the  President  and 
Senate  for  four  years.  They  receive  $2600  each. 

The  Marshal  and  Reporter  of  the  Supreme  Court  are 
appointed  by  the  Court,  and  receive  salaries;  the  for 
mer  $3000,  the  latter  $2500. 

The  Attorney  and  Marshal  for  the  District  Courts, 
who  are  officers  of  the  Circuit  Courts  also,  are  appointed 
by  the  President  and  Senate,  and  receive  each  a  salary 
of  $200  and  fees. 


CHAPTER    VIII. 

THE   STATE   GOVERNMENTS. 

In  chapter  VI  an  account  has  been  given  of  the 
twenty-four  States  which  have  been  admitted  to  the 
Union  since  the  adoption  of  the  Constitution.  The 
thirteen  original  States  were  colonies  until  the  Decla 
ration  of  Independence.  By  that  act  the  individual 
colonies  were  transformed  into  States,  and  the  thirteen 
United  Colonies  assumed  their  position  as  a  nation, 
under  the  name  of  the  United  States.  The  colonies 
had  exercised  some  of  the  powers  of  government,  while 
they  acknowledged  a  common  allegiance  to  Great  Brit 
ain.  "  By  the  Declaration  of  Independence  the  sover 
eignty  of  the  thirteen  colonies  passed  from  the  crown 
to  the  people  dwelling  in  them,  not  as  an  aggregate 
body,  but  as  forming  States  endowed  with  the  functions 
necessary  for  their  separate  existence ;  also  States  in 
Union."  l 

The  nation  began  its  existence  on  the  fourth  day  of 
July,  1776;  and  on  the  same  day  each  of  the  thirteen 
colonies  was  transformed  into  a  State  —  became  an  in 
tegral  part  of  the  nation.  Each  of  the  new  States  be 
came  such,  when,  having  adopted  a  constitution,  it  was 
admitted  into  the  Union  by  Congress.  But  the  old 
thirteen  did  not  become  States  by  the  formation  of  a 
constitution,  nor  by  a  Congressional  vote  of  admission. 
They  were  made  States  by  the  Declaration  of  Independ 
ence.  No  one  of  the  thirteen  was  a  State  prior  to  that 


lFrothingham'fl  Rise  of  the  Republic,  p.  561. 

(360) 


NO  STATES  BEFORE  THE  DECLARATION.  361 

day,  though  a  few  of  them  had  established  temporary 
forms  of  government,  by  the  recommendation  of  Con 
gress.  Each  was  a  State  from  that  day,  though  some 
formed  no  State  constitutions  until  months,  and,  in 
some  cases,  years,  had  elapsed.  Massachusetts  remained 
under  her  colonial  charter  till  1780,  Connecticut  till 
1818,  and  Rhode  Island  till  1842. 

In  the  latter  part  of  1775  Congress  had  recommended 
to  New  Hampshire,  South  Carolina,  and  Virginia,  to 
modify  their  local  governments,  to  "continue  during 
the  dispute  with  Great  Britain."  And  in  May,  1776, 
a  like  recommendation  was  made  to  "the  several  colo 
nies  where  no  governments  sufficient  to  the  exigencies 
of  their  affairs  had  been  established."  In  accordance 
with  these  recommendations  New  Hampshire,  South 
Carolina,  Virginia,  and  New  Jersey — all  being  royal  col 
onies  —  provided  themselves  with  governments  adapted 
to  their  necessities.  But,  in  at  least  three  of  these  four 
cases,  the  governments  were  expressly  declared  to  be 
temporary,  to  continue  until  the  unhappy  differences 
between  Great  Britain  and  America  should  be  settled. 
Of  the  body  that  framed  the  constitution  of  Virginia 
in  1776,  Mr.  Jefferson  says:  "They  received  in  their 
creation  no  powers  but  what  were  given  to  every  leg 
islature  before  or  since.  They  could  not,  therefore,  pass 
an  act  transcendent  to  the  powers  of  other  legislatures." 
And  of  the  instrument  itself  he  says :  "  It  pretends  to 
no  higher  authority  than  the  other  ordinances  of  the 
same  session."  Such  instruments  could  hardly  be  called 
constitutions. 

Including  the  four  already  mentioned,  the  thirteen 
local  governments  were  modified,  or  established,  as 
follows : 

New  Hampshire,         January  5,  1776. 

South  Carolina,  March  26,  1776. 

Virginia,  June  29,  1776. 

New  Jersey,  July  2,  1776. 

C.  G.  31. 


362  THE  STATE   GOVERNMENTS. 

Delaware,  September  20,  1776. 

Pennsylvania,  September  28,  1776. 

Maryland,  November  8,  1776. 

North  Carolina,  December  18,  1776. 

Georgia,  February  5,  1777. 

New  York,  April  20,  1777. 

Massachusetts,  March  2,  1780. 

Connecticut,  September  16,  1818. 

Rhode  Island,  November  23,  1842. 

Most  of  the  States  have  altered  their  constitutions, 
some  of  them  a  number  of  times.  Connecticut  and 
Rhode  Island  had  no  other  constitutions  than  their  co 
lonial  charters  till  1818  and  1842;  and  the  constitutions 
then  adopted  still  remain.  Massachusetts,  which  formed 
her  first  constitution  in  1780,  adopted  a  new  one  in  1820, 
which  is  still  in  force. 

The  State  constitutions  resemble  each  other  in  their 
general  provisions,  while  they  differ  in  particulars. 
THE  CONSTITUTION  OF  ILLINOIS,  adopted  in  1870,  may 
be  taken  as  fairly  illustrating  the  general  principles 
of  these  instruments.  It  contains  fourteen  articles,  as 
follows : 

I.  Boundaries  of  the  State. 

II.  Bill  of  Rights. 

III.  Distribution  of  Powers. 

IV.  Legislative  Department. 
V.  Executive  Department. 

VI.  Judicial  Department. 

VII.  Suffrage. 

VIII.  Education. 

IX.  Revenue. 

X.  Counties. 

XI.  Corporations. 

XII.  Militia. 

XIII.  Warehouses. 

XIV.  Amendments  to  the  Constitution. 


THE   CONSTITUTION   OF  ILLINOIS.  365 

The  Bill  of  Rights  contains  twenty  sections,  relating 
to  liberty  of  conscience,  trial  by  jury,  etc. 

The  Powers  are  three  —  the  Legislative,  the  Executive, 
and  the  Judicial. 

The  Legislative  power  is  vested  in  a  General  Assembly, 
consisting  of  a  Senate  and  House  of  Representatives, 
both  to  be  elected  by  the  people. 

The  State  is  to  be  divided  every  ten  years,  into  fifty- 
one  senatorial  districts,  in  each  of  which  a  Senator  is 
to  be  elected  for  four  years.  Half  of  the  Senators  go 
out  every  two  years.  Three  Representatives  are  elected 
from  each  senatorial  district,  to  serve  two  }rears.  The 
election  is  on  the  Tuesday  next  after  the  first  Monday 
in  November  of  the  even  years.  (This  is  the  day  for 
the  election  of  members  of  Congress  throughout  the 
United  States,  commencing  with  1876.  The  presiden 
tial  election  will  come  also  011  the  same  day.) 

A  Senator  must  be  twenty-five  years  of  age,  and  a 
Representative  twenty -one;  and  each  must  have  been 
a  citizen  of  the  United  States  five  years,  and  a  resident 
of  the  district  two  years. 

The  Representatives  are  elected  on  the  principle  of 
"minority  representation."  "Each  qualified  voter  may 
cast  as  many  votes  for  one  candidate  as  there  are  Rep 
resentatives  to  be  elected,  or  may  distribute  the  same, 
or  equal  parts  thereof,  among  the  candidates,  as  he  shall 
see  fit."  The  legislature  holds  annual  sessions. 

A  majority  is  a  quorum  in  each  House.  The  yeas  and 
nays  must  be  called  on  the  request  of  five  members 
in  the  House,  and  two  in  the  Senate.  The  vote  on 
the  final  passage  of  every  bill  must  be  by  yeas  and 
nays.  No  bill  can  become  a  law  without  the  votes  of 
a  majority  of  the  members  elected  to  each  House.  No 
act  can  contain  more  than  one  subject,  which  must  be 
expressed  in  its  title.  No  law  takes  effect  till  the  first 
of  July  after  its  passage,  unless  the  legislature,  by  a 
vote  of  two-thirds  of  all  the  members  elected,  direct 


364  THE  STATE  GOVERNMENTS. 

otherwise.  Special  legislation  is  forbidden  in  enumer 
ated  cases,  and  in  all  others  where  general  laws  are 
applicable.  The  General  Assembly  can  not  authorize 
lotteries,  or  gift  enterprises;  and  the  sale  of  such  tickets 
must  be  prohibited  by  law. 

The  Executive  Department  consists  of  a  Governor,  Lieu- 
tenant-Governor,  Secretary  of  State,  Auditor,  Treasurer, 
Superintendent  of  Public  Instruction,  and  Attorney- 
General.  These  hold  office  for  four  years,  except  the 
Treasurer,  who  holds  for  two  years,  and  is  ineligible 
for  two  years  next  after  the  end  of  his  term.  The  Gov 
ernor  and  Lieutenant-Governor  must  be  thirty  years  of 
age.  The  Governor  may  grant  pardons  after  conviction. 
He  may  veto  bills,  but  the  veto  may  be  overcome  by 
the  votes  of  two-thirds  of  the  members  elected  to  each 
House.  The  Executive  officers  are  elected  at  the  same 
time  with  the  Legislative. 

The  Judicial  powers  are  vested  in  one  Supreme  Court, 
Circuit  Courts,  County  Courts,  Justices  of  the  Peace, 
Police  Magistrates,  and  such  Courts  as  may  be  created 
by  law  for  cities  and  towns.  The  Supreme  Court  con 
sists  of  seven  Judges,  elected  from  seven  districts,  for 
nine  years.  Four  make  a  quorum,  and  the  concurrence 
of  four  is  necessary  for  every  decision.  They  choose  one 
of  their  number  Chief  Justice.  A  Judge  of  this  Court 
must  be  thirty  years  of  age.  There  is  one  Circuit  Judge 
in  each  judicial  circuit,  which  must  contain  a  popula 
tion  of  not  less  than  100,000.  The  Circuit  Judge  must 
be  twenty-five  years  of  age,  and  is  elected  for  six  years. 
Both  Supreme  and  Circuit  Judges  are  elected  on  the  first 
Monday  of  June.  The  County  Judge  is  elected  for  four 
years,  and  a  State's  Attorney  in  each  county  for  the 
same  time.  Counties  with  50,000  inhabitants  may  have 
Probate  Courts.  Any  Judge  may  be  removed  from  office 
by  the  votes  of  three-fourths  of  the  members  elected  to 
each  House.  All  Judges  of  courts  of  record  below  the 
Supreme  Court  make  written  reports  to  the  Supreme 


THE  CONSTITUTION  OF  ILLINOIS.  365 

Judges  each  year  of  such  defects  and  omissions  in  the 
laws  as  their  experience  may  suggest;  and  the  Judges 
of  the  Supreme  Court  make  report  to  the  Governor,  an 
nually,  of  any  defects  and  omissions  in  the  constitution 
and  laws,  with  appropriate  forms  of  bills  to  cure  such 
defects  in  the  laws.  The  salaries  of  the  Judges  of  the 
Supreme  and  Circuit  Courts,  and  those  of  the  Execu 
tive  officers  named  in  the  constitution,  and  the  pay  of 
the  members  of  the  Legislature,  can  not  be  increased 
or  diminished  during  their  term  of  office. 

The  right  of  Suffrage  belongs  to  every  male  citizen 
of  the  United  States,  of  the  age  of  twenty-one  years, 
having  resided  one  year  in  the  State,  ninety  days  in 
the  County,  and  thirty  days  in  the  election  district. 
All  votes  must  be  by  ballot. 

The  constitution  encourages  Education  by  requiring 
the  General  Assembly  to  provide  an  efficient  system  of 
free  schools.  Public  schools  must  not  be  sectarian,  and 
public  property  must  not  be  granted  for  sectarian  pur 
poses.  County  Superintendents  are  authorized. 

The  article  on  Revenue  provides  that  all  persons  and 
corporations  shall  pay  taxes  in  proportion  to  the  value 
of  their  property;  but  peddlers,  auctioneers,  etc.,  may  be 
taxed  as  the  General  Assembly  may  direct  by  general 
law.  Property  used  exclusively  for  agricultural  and 
horticultural  societies,  for  school,  religious,  cemetery,  and 
charitable  purposes,  may  be  exempted  from  taxation. 
No  municipal  indebtedness  may  be  incurred  exceeding 
five  per  centum  on  the  value  of  the  taxable  property. 

The  County  Officers  are  a  Judge,  Sheriff,  County  Clerk. 
Clerk  of  the  Circuit  Court  (who  may  be  ex-officio  Re 
corder  of  deeds),  Treasurer,  Surveyor,  and  Coroner,  who 
hold  office  for  four  years,  except  the  Treasurer,  Sheriff, 
and  Coroner,  who  hold  for  two  years.  The  General  As 
sembly  shall  provide  by  general  law  for  township  or 
ganization,  under  which  any  county  may  organize  by  a 
majority  vote;  in  this  case  the  fiscal  affairs  of  the 


366  THE  STATE  GOVERNMENTS. 

county  may  be  transacted  as  the  General  Assembly  shall 
direct.  Other  counties  will  be  managed  by  a  "  Board 
of  County  Commissioners,"  consisting  of  three  officers, 
elected  for  three  years. 

Corporations  can  be  created  only  by  general  laws.  In 
elections  for  directors  of  incorporated  companies,  cumu 
lative  voting  is  allowed.  The  State  can  not  own  stock 
in  any  banking  company.  No  act  of  the  General  As 
sembly  creating  corporations  with  banking  powers  shall 
go  into  effect  till  approved  by  a  majority  of  the  electors. 
If  a  banking  law  be  enacted,  bills  must  be  secured  by 
deposit,  to  the  full  amount  thereof,  of  stocks  of  the 
United  States  or  Illinois,  to  be  rated  at  ten  per  cent  be 
low  their  par  value.  Railroad  corporations  must  keep 
open  to  public  inspection  their  books  of  transfer  of 
stocks,  and  the  directors  must  make  annual  reports,  un 
der  oath,  of  their  doings,  including  whatever  may  be 
prescribed  by  law.  No  railroad  corporation  shall  con 
solidate  its  property  with  another  owning  a  parallel  or 
competing  line;  and  no  consolidation  shall  take  place 
without  public  notice,  of  at  least  sixty  days,  to  all  stock 
holders.  Railways  are  declared  public  highways,  and 
reasonable  maximum  charges  shall  be  established  by 
law.  Stock  dividends  and  other  fictitious  increase  of 
capital  stock  are  void. 

Article  twelfth  relates  to  the  Militia,  and  article  thir 
teenth  to  Warehouses. 

Amendments  to  the  constitution  may  be  made  by  a 
constitutional  convention,  or  be  proposed  by  the  legisla 
ture.  If  two-thirds  of  the  members  of  each  House  vote 
to  call  a  convention,  the  question  shall  be  submitted  to 
the  people ;  and  any  amendments  made  by  a  convention 
thus  called  shall  be  submitted  to  the  electors  for  ap 
proval.  The  legislature,  by  a  vote  of  two-thirds  of  the 
members  elected  to  each  House,  may  propose  amend 
ments,  which  shall  be  voted  on  by  the  people;  but 
amendments  to  more  than  one  article  can  not  be  pro- 


TERM  OF  OFFICE  OF  THE  GOVERNOR.  367 

posed  at  the  same  session  of  the  legislature,  nor  to  the 
same  article  oftener  than  once  in  four  years. 

Besides  the  fourteen  articles  there  are  three  separate 
sections.  The  first  forbids  the  legislature  from  ever  re 
leasing  the  Illinois  Central  Railroad  from  its  obligations 
to  the  State.  The  second  provides  that  there  shall  be 
no  municipal  subscriptions  to  railroads  or  private  cor 
porations.  The  third  provides  that  the  Illinois  and 
Michigan  Canal  shall  never  be  sold  or  leased  without 
a  vote  of  the  electors,  and  that  the  General  Assembly 
shall  never  loan  the  credit  of  the  State,  or  make  ap 
propriations  from  the  treasury  thereof,  in  aid  of  rail 
roads  or  canals. 

The  State  governments  resemble  each  other  and 
the  general  government  in  having  the  three  divis 
ions,  Executive,  Legislative,  and  Judicial.  They  differ 
in  many  particulars,  as  the  power  of  the  Executive, 
the  right  of  suffrage,  the  mode  of  election,  the  term 
of  office,  etc. 

In  Maine,  New  Hampshire,  and  Massachusetts,  there 
is  an  Executive  Council — ranging  from  five  to  eight  in 
number — with  whom  the  Governor  advises  as  to  ap 
pointments,  pardons,  etc. 

In  each  of  the  New  England  States,  the  Governor  is 
elected  annually.  In  New  York,  Ohio,  Wisconsin,  Iowa, 
Minnesota,  and  Kansas,  the  term  is  two  years;  in  New 
Jersey  it  is  three;  and  in  Pennsylvania,  Delaware, 
Maryland,  Illinois,  California,  and  Oregon,  it  is  four. 
In  some  States  the  Governor  has  the  veto  power. 

In  most  of  the  States  the  Secretary  of  State,  Treasurer, 
Auditor,  Attorney -General,  etc.,  are  elected  by  the  people. 
In  Maine,  these  officers  are  all  chosen  by  the  legisla 
ture.  In  New  Hampshire,  the  Governor  appoints  the 
Attorney-General;  and  the  Treasurer  and  Secretary  of 
State  are  chosen  by  the  legislature.  In  New  Jersey,  the 
Governor  and  Senate  appoint  the  Secretary  of  State, 


368  THE  STATE  GOVERNMENTS. 

and  the  legislature  choose  the  Treasurer.  In  Maryland, 
the  Secretary  of  State  is  appointed  by  the  Governor,  the 
Comptroller  is  elected  by  the  people,  and  the  legislature 
choose  the  Treasurer. 

In  all  the  New  England  States  the  Senators  and  Repre 
sentatives  are  elected  annually.  In  Ohio,  Michigan,  etc,, 
tney  are  elected  for  two  years.  In  New  York,  the  Sen 
ators  are  for  two  years,  and  the  Representatives  for  one. 
In  New  Jersey,  the  Senators  are  chosen  for  three  years; 
the  Representatives,  for  one.  In  Pennsylvania,  Del 
aware,  Maryland,  Indiana,  and  Illinois,  the  Senators 
are  for  four  years,  and  the  Representatives  for  two. 
The  ratio  of  the  number  of  Senators  to  that  of  Repre 
sentatives  is  usually  about  as  one  to  three;  though  in 
Massachusetts,  it  is  as  one  to  six ;  in  Vermont,  as  one  to 
eight ;  and  in  New  Hampshire,  as  one  to  twenty-five. 
In  most  of  the  States  the  two  Houses  are  called  the  Gen 
eral  Assembly,  but  in  Massachusetts  and  New  Hamp 
shire  they  are  called  the  General  Court.  In  New  York, 
the  lower  House  is  called  The  Assembly;  and  in  Vir 
ginia  and  West  Virginia,  The  House  of  Delegates. 

In  Maine,  the  Judges  of  the  Supreme  Court  are  ap 
pointed  by  the  Governor  and  Council,  for  seven  years. 
In  New  Hampshire  and  Massachusetts,  they  are  ap 
pointed  in  the  same  way,  and  hold  office  during  good 
behavior.  In  Vermont,  the  legislature  elect  the  Judges 
annually.  In  Connecticut,  the  legislature  elect  the 
Judges  for  eight  years.  In  New  Jersey,  the  Supreme 
Judges  are  appointed  by  the  Governor  and  Senate  for 
seven  years,  and  the  Circuit  Judges  for  six.  In  Dela 
ware,  the  Governor  appoints  all  the  Judges,  and  they 
hold  office  during  good  behavior.  The  Supreme  Judges 
are  elected  by  the  people,  in  Ohio,  for  five  years;  in 
Wisconsin,  Iowa,  Kansas,  and  Oregon,  for  six;  in  Indi 
ana  and  Minnesota,  for  seven;  in  Michigan,  for  eight; 
in  Illinois,  for  nine;  in  Maryland  and  California,  for 
ten;  in  Pennsylvania,  for  twenty-one. 


THE  JUDGES— SUFFRAGE.  369 

By  the  new  constitution  of  Pennsylvania  the  Gov 
ernor  and  Supreme  Judges  can  not  be  re-elected. 

In  a  number  of  States  suffrage  was  formerly  limited 
to  "white"  persons,  but  the  Fifteenth  Amendment  to 
the  Constitution  renders  this  limitation  inoperative. 
Twenty-five  States  require  the  voter  to  be  a  citizen  of 
the  United  States;  the  remaining  twelve  make  the 
legal  declaration  of  intention  to  become  a  citizen  suffi 
cient.  A  residence  of  one  year  in  the  State  is  generally 
required,  though  a  number  make  six  months  sufficient ; 
and  Kentucky  requires  two  years.  Georgia,  Nevada, 
Massachusetts,  -and  New  Hampshire,  make  the  pay 
ment  of  taxes  a  requisite  for  voting,  except  in  certain 
cases.  The  same  is  the  case  in  Delaware,  for  those 
over  twenty-two  years  of  age.  In  Connecticut,  those 
can  not  vote  who  are  "unable  to  read  an  article  in 
the  constitution  or  any  section  of  the  statutes  of  the 
State ; "  and  in  Massachusetts,  those  "  unable  to  read 
the  constitution  in  the  English  language,  and  write 
their  names,  unless  prevented  by  physical  debility, 
or  over  sixty  years  of  age  when  the  constitution  was 
adopted."  Fifteen  States  exclude  from  suffrage  those 
who  are  insane;  ten,  those  who  are  idiotic;  seven, 
those  who  are  " non  compos  mentis"  or  "of  unsound 
mind;"  eight,  those  under  guardianship;  seven,  those 
who  are  paupers;  one,  those  supported  in  an  alms-house 
or  asylum. 

These  particulars  give  a  general  idea  of  the  sphere 
of  the  State  governments,  and  shoAV  in  what  respects 
their  constitutions  differ.  It  will  be  seen  that,  ordi 
narily,  the  citizen  has  a  more  direct  and  personal  rela 
tion  to  the  laws  of  the  State  than  to  those  of  the  na 
tion.  For  many"  years  prior  to  the  recent  war  we  were 
conscious  of  our  relation  to  the  nation  chiefly  by  our 
Congressional  and  Presidential  elections.  Taxes  were 
paid  to  the  State  officials;  and  the  laws  which  regulated 
the  daily  life  of  the  people  came  from  the  State  legisla- 


370  THE  STATE  GOVERNMENTS. 

tures  and  not  from  Congress.     But  during  the  war  the 
nation  became  to  every  man  a  distinct  reality. 

In  general,  the  State  governments  have  to  do  with 
matters  that  are  local  and  municipal,  in  distinction 
from  those  which  are  general  and  national.  The  well- 
being  of  the  people  is,  of  course,  dependent  upon  both 
governments,  though  State  legislation  bears  more  di 
rectly  than  national  upon  their  prosperity  and  happi 
ness.  There  are  some  matters,  controlled  by  the  States, 
in  regard  to  which  uniformity  is  desirable;  as,  for  ex 
ample,  the  descent  of  property.  It  is  unfortunate  that 
a  will,  made  and  executed  according  to  the  forms  of  law 
in  one  State,  should  subsequently  be  found  to  be  invalid 
because  the  death  of  the  testator  had  occurred  in  an 
other  State,  to  which  he  had  removed. 

The  American  people,  thus,  constitute  one  nation 
with  whom  is  the  sovereignty ;  but  they  have  a  gov 
ernment  which  is  two-fold — exists  in  two  departments. 
To  each  of  these  departments  the  nation  has  com 
mitted  certain  governmental  trusts.  It  might  have 
distributed  these  trusts  differently;  given  more  to  the 
one  and  less  to  the  other.  The  nation  may  alter  the 
distribution  when  it  pleases;  for,  strictly,  the  sover 
eignty  does  not  belong  to  the  government  of  a  nation, 
but  to  the  nation  itself,  which  has  established  the  gov 
ernment.  The  people  are  undoubtedly  competent  to 
change  the  character  of  the  government,  and  give  it 
such  form  as  they  may  think  will  most  promote  their 
interests.  But  as  the  people  of  the  United  States  are 
also  the  people  of  the  States  severally,  we  may  rest 
satisfied  that  no  change  will  ever  be  made  which  the 
people  of  the  States  do  not  believe  will  be  for  their 
common  good. 


THE  DECLARATION  OF  INDEPENDENCE. 


IN   CONGRESS,  JULY  4,   1776. 

THE    UNANIMOUS    DECLARATION    OF    THE    THIRTEEN 
UNITED   STATES  OF  AMERICA. 


WHEN,  in  the  course  of  human  events,  it  becomes  necessary  for 
one  people  to  dissolve  the  political  bands  which  have  connected 
them  with  another,  and  to  assume,  among  the  powers  of  the  earth, 
the  separate  and  equal  station  to  which  the  laws  of  nature  and  of 
nature's  God  entitle  them,  a  decent  respect  to  the  opinions  of  man 
kind  requires  that  they  3hould  declare  the  causes  which  impel  them 
to  the  separation. 

We  hold  these  truths  to  be  self-evident :  that  all  men  are  created 
equal;  that  they  are  endowed  by  their  Creator  with  certain  unalien- 
able  rights;  that  among  these  are  life,  liberty,  and  the  pursuit  of 
happiness;  that,  to  secure  these  rights,  governments  are  instituted 
among  men,  deriving  their  just  powers  from  the  consent  of  the 
governed ;  that,  whenever  any  form  of  government  becomes  destruc 
tive  of  these  ends,  it  is  the  right  of  the  people  to  alter  or  to  abolish 
it,  and  to  institute  a  new  government,  laying  its  foundation  on  such 
principles,  and  organizing  its  powers  in  such  form,  as  to  them  shall 
seem  most  likely  to  effect  their  safety  and  happiness.  Prudence, 
indeed,  will  dictate,  that  governments  long  established,  should  not  be 
changed  for  light  and  transient  causes;  and,  accordingly,  all  expe 
rience  hath  shown  that  mankind  are  more  disposed  to  suffer,  while 
evils  are  suflferable,  than  to  right  themselves  by  abolishing  the  forms 
to  which  they  are  accustomed.  But  when  a  long  train  of  abuses  and 
usurpation^,  pursuing  invariably  the  same  object,  evinces  a  design  to 
reduce  them  under  absolute  despotism,  it  is  their  right,  it  is  their 
duty,  to  throw  off  such  a  government,  and  to  provide  new  guards  for 
their  future  security.  Such  has  been  the  patient  sufferance  of  these 
colonies,  and  such  is  now  the  necessity  which  constrains  them  to 

(i) 


11  APPENDIX. 

alter  their  former  systems  of  government.  The  history  of  the  present 
King  of  Great  Britain  is  a  history  of  repeated  injuries  and  usurpa 
tions,  all  having  in  direct  object  the  establishment  of  an  absolute 
tyranny  over  these  States.  To  prove  this,  let  facts  be  submitted  to 
a  candid  world. 

He  has  refused  his  assent  to  laws  the  most  wholesome  and  neces 
sary  for  the  public  good. 

He  has  forbidden  his  governors  to  pass  laws  of  immediate  and 
pressing  importance,  unless  suspended  in  their  operations  till  his 
assent  should  be  obtained ;  and  when  so  suspended,  he  has  utterly 
neglected  to  attend  to  them. 

He  has  refused  to  pass  other  laws  for  the  accommodation  of  large 
districts  of  people,  unless  those  people  would  relinquish  the  right 
of  representation  in  the  legislature  —  a  right  inestimable  to  them, 
and  formidable  to  tyrants  only. 

He  has  called  together  legislative  bodies  at  places  unusual,  un 
comfortable,  and  distant  from  the  depository  of  their  public  records, 
for  the  sole  purpose  of  fatiguing  them  into  compliance  with  his 
measures. 

He  has  dissolved  representative  houses  repeatedly,  for  opposing, 
with  manly  firmness,  his  invasions  on  the  rights  of  the  people. 

He  has  refused,  for  a  long  time  after  such  dissolutions,  to  cause 
others  to  be  elected,  whereby  the  legislative  powers,  incapable  of 
annihilation,  have  returned  to  the  people  at  large  for  their  exercise; 
the  state  remaining,  in  the  meantime,  exposed  to  all  the  dangers  of 
invasions  from  without,  and  convulsions  within. 

He  has  endeavored  to  prevent  the  population  of  these  States ;  for 
that  purpose  obstructing  the  laws  for  the  naturalization  of  foreigners; 
refusing  to  pass  others  to  encourage  their  migrations  hither,  and 
raising  the  conditions  of  new  appropriations  of  lands. 

He  has  obstructed  the  administration  of  justice  by  refusing  his 
assent  to  laws  for  establishing  judiciary  powers. 

He  has  made  judges  dependent  on  his  will  alone  for  the  tenure 
of  their  offices,  and  the  amount  and  payment  of  their  salaries. 

He  has  erected  a  multitude  of  new  offices,  and  sent  hither  swarms 
of  officers  to  harass  our  people  and  eat  out  their  substance. 

He  has  kept  among  us,  in  times  of  peace,  standing  armies,  with 
out  the  consent  of  our  legislatures. 

He  has  affected  to  render  the  military  independent  of,  and  superior 
to,  the  civil  power. 

He  has  combined  with  others  to  subject  us  to  a  jurisdiction  foreign 
to  our  constitution,  and  unacknowledged  by  our  laws;  giving  his 
assent  to  their  acts  of  pretended  legislation : 


THE  DECLARATION  OF  INDEPENDENCE. 

For  quartering  large  bodies  of  armed  troops  among  us; 

For  protecting  them,  by  a  mock  trial,  from  punishment  for  any 
murders  which  they  should  commit  on  the  inhabitants  of  these  States; 

For  cutting  off  our  trade  with  all  parts  of  the  world ; 

For  imposing  taxes  on  us  without  our  consent; 

For  depriving  us,  in  many  cases,  of  the  benefits  of  trial  by  jury ; 

For  transporting  us  beyond  seas  to  be  tried  for  pretended  offenses ; 

For  abolishing  the  free  system  of  English  laws  in  a  neighboring 
province,  establishing  therein  an  arbitrary  government,  and  enlarging 
its  boundaries,  so  as  to  render  it  at  once  an  example  and  fit  instru 
ment  for  introducing  the  same  absolute  rule  into  these  colonies; 

For  taking  away  our  charters,  abolishing  our  most  valuable  laws, 
and  altering,  fundamentally,  the  forms  of  our  governments; 

For  suspending  our  own  legislatures,  and  declaring  themselves 
invested  with  power  to  legislate  for  us  in  all  cases  whatsoever. 

He  has  abdicated  government  here  by  declaring  us  out  of  his 
protection,  and  waging  war  against  us. 

He  has  plundered  our  seas,  ravaged  our  coasts,  buraed  our  towns, 
and  destroyed  the  lives  of  our  people. 

He  is  at  this  time  transporting  large  armies  of  foreign  mercenaries 
to  complete  the  works  of  death,  desolation,  and  tyranny,  already 
begun  with  circumstances  of  cruelty  and  perfidy,  scarcely  paralleled 
in  the  most  barbarous  ages,  and  totally  unworthy  the  head  of  a 
civilized  nation. 

He  has  constrained  our  fellow-citizens,  taken  captive  on  the  high 
seas,  to  bear  arms  against  their  country,  to  become  the  executioners 
of  their  friends  and  brethren,  or  to  fall  themselves  by  their  hands. 

He  has  excited  domestic  insurrection  among  us,  and  has  endeav 
ored  to  bring  on  the  inhabitants  of  our  frontiers  the  merciless  Indian 
savages,  whose  known  rule  of  warfare  is  an  undistinguished  destruc 
tion  of  all  ages,  sexes,  and  conditions. 

In  every  stage  of  these  oppressions  we  have  petitioned  for  redress 
in  the  most  humble  terms;  our  repeated  petitions  have  been  an 
swered  only  by  repeated  injury.  A  prince  whose  character  is  thus 
marked  by  every  act  which  may  define  a  tyrant,  is  unfit  to  be  the 
ruler  of  a  free  people. 

Nor  have  we  been  wanting  in  attentions  to  our  British  brethren. 
We  have  warned  them,  from  time  to  time,  of  attempts  by  their  legis 
lature  to  extend  an  unwarrantable  jurisdiction  over  us.  We  have 
reminded  them  of  the  circumstances  of  our  emigration  and  settlement 
here.  We  have  appealed  to  their  native  justice  and  magnanimity, 
and  we  have  conjured  them,  by  the  ties  of  our  common  kindred,  to 
disavow  these  usurpations,  which  would  inevitably  interrupt  our  con- 


IV  APPENDIX. 

nections  and  correspondence.  They,  too,  have  been  deaf  to  the  voice 
of  justice  and  of  consanguinity.  We  must,  therefore,  acquiesce  in  the 
necessity  which  denounces  our  separation,  and  hold  them,  as  we  hold 
the  rest  of  mankind  —  enemies  in  war;  in  peace,  friends. 

We,  therefore,  the  representatives  of  the  UNITED  STATES  OF 
AMERICA,  in  General  Congress  assembled,  appealing  to  the  Supreme 
Judge  of  the  world  for  the  rectitude  of  our  intentions,  do,  in  the  name 
and  by  the  authority  of  the  good  people  of  these  colonies,  solemnly 
publish  and  declare,  That  these  United  Colonies  are,  and  of  right 
ought  to  be,  Free  and  Independent  States;  that  they  are  absolved  from 
all  allegiance  to  the  British  crown,  and  that  all  political  connection 
between  them  and  the  state  of  Great  Britain  is,  and  ought  to  be, 
totally  dissolved ;  and  that,  as  Free  and  Independent  States,  they  have 
full  power  to  levy  war,  conclude  peace,  contract  alliances,  establish 
commerce,  and  to  do  all  other  acts  and  things  which  Independent  States 
may  of  right  do.  And  for  the  support  of  this  Declaration,  with  a 
firm  reliance  on  the  protection  of  DIVINE  PROVIDENCE,  we  mutually 
pledge  to  each*  other  our  lives,  our  fortunes,  and  our  sacred  honor. 

JOHN  HANCOCK. 

NEW  HAMPSHIRE. — Josiah  Bartlett,  William  Whipple,  Matthew 
Thornton. 

MASSACHUSETTS  BAY. —  Samuel  Adams,  John  Adams,  Kobert  Treat 
Paine,  Elbridge  Gerry. 

KHODE  ISLAND,  ETC. — Stephen  Hopkins,  William  Ellery. 

CONNECTICUT. —  Roger  Sherman,  Samuel  Huntington,  William 
Williams,  Oliver  Wolcott. 

NEW  YORK. — William  Floyd,  Philip  Livingston,  Francis  Lewis, 
Lewis  Morris. 

NEW  JERSEY. —  Richard  Stockton,  John  WTitherspoon,  Francis 
Hopkinson,  John  Hart,  Abraham  Clark. 

PENNSYLVANIA. —  Robert  Morris,  Benjamin  Rush,  Benjamin 
Franklin,  John  Morton,  George  Clymer,  James  Smith,  George 
Taylor,  James  Wilson,  George  Ross. 

DELAWARE. —  Ca?sar  Rodney,  George  Read,  Thomas  M'Kean. 

MARYLAND. — Samuel  Chase,  W7illiam  Paca,  Thomas  Stone,  Charles 
Carroll,  of  Carroll  ton. 

VIRGINIA.—  George  Wythe,  Richard  Henry  Lee,  Thomas  Jefferson, 
Benjamin  Harrison,  Thomas  Nelson,  Jr.,  Francis  Lightfoot  Lee,  Carter 
Braxton. 

NORTH  CAROLINA. — William  Hooper,  Joseph  Hewes,  John  Penn. 

SOUTH  CAROLINA. —  Edward  Rutledge,  Thomas  Hey  ward,  Jr., 
Thomas  Lynch,  Jr.,  Arthur  Middleton. 

GEORGIA. —  Button  Gwinnett,  Lyman  Hall,  George  Walton. 


ARTICLES  OF  CONFEDERATION. 


Articles  of  Confederation  and  Perpetual  Union  between  the 
States  of  New  Hampshire,  Massachusetts  Bay,  Rhode 
Island  and  Providence  Plantations,  Connecticut,  New 
York,  New  Jersey,  Pennsylvania,  Delaware,  Maryland, 
Virginia,  North  Carolina,  South  Carolina,  and  Georgia. 


ARTICLE  I.— The  style  of  this  confederacy  shall  be,  " The  United 
States  of  America." 

ART.  II. — Each  State  retains  its  sovereignty,  freedom,  and  inde 
pendence,  and  every  power,  jurisdiction,  and  right,  which  is  not  by 
this  confederation  expressly  delegated  to  the  United  States  in  Con 
gress  assembled. 

ART.  III. — The  said  States  hereby  severally  enter  into  a  firm 
league  of  friendship  with  each  other,  for  their  common  defense,  the 
security  of  their  liberties,  and  their  mutual  and  general  welfare, 
binding  themselves  to  assist  each  other  against  all  force  offered  to, 
or  attacks  made  upon  them,  or  any  of  them,  on  account  of  religion, 
sovereignty,  trade,  or  any  other  pretense  Avhatever. 

ART.  IV. — The  better  to  secure  and  perpetuate  mutual  friendship 
and  intercourse  among  the  people  of  the  different  States  in  this 
Union,  the  free  inhabitants  of  each  of  these  States,  paupers,  vaga 
bonds,  and  fugitives  from  justice  excepted,  shall  be  entitled  to  all 
privileges  and  immunities  of  free  citizens  in  the  several  States ;  and 
the  people  of  each  State  shall  have  free  ingress  and  regress  to  and 
from  any  other  State,  and  shall  enjoy  therein  all  the  privileges  of 
trade  and  commerce,  subject  to  the  same  duties,  impositions,  and 
restrictions,  as  the  inhabitants  thereof  respectively;  provided  that 
such  restrictions  shall  not  extend  so  far  as  to  prevent  the  removal  of 
property  imported  into  any  State,  to  any  other  State,  of  which  the 
owner  is  an  inhabitant ;  provided  also,  that  no  imposition,  duties,  or 

(v) 


V1  «  APPENDIX. 

restriction,  shall  be  laid  by  any  State  on  the  property  of  the  United 
States,  or  either  of  them. 

If  any  person  guilty  of,  or  charged  with,  treason,  felony,  or  other 
high  misdemeanor  in  any  State,  shall  flee  from  justice,  and  be  found 
in  any  of  the  United  States,  he  shall,  upon  demand  of  the  governor 
or  executive  power  of  the  State  from  which  he  fled,  be  delivered  up, 
and  removed  to  the  State  having  jurisdiction  of  his  offense. 

Full  faith  and  credit  shall  be  given,  in  each  of  these  States,  to  the 
records,  acts,  and  judicial  proceedings  of  the  courts  and  magistrates 
of  every  other  State. 

ART.  V. — For  the  more  convenient  management  of  the  general 
interests  of  the  United  States,  delegates  shall  be  annually  appointed 
in  such  manner  as  the  legislature  of  each  State  shall  direct,  to  meet 
in  Congress  on  the  first  Monday  in  November,  in  every  year,  with  a 
power  reserved  to  each  State  to  recall  its  delegates,  or  any  of  them, 
at  any  time  within  the  year,  and  to  send  others  in  their  stead,  for  the 
remainder  of  the  year. 

No  State  shall  be  represented  in  Congress  by  less  than  two,  nor 
by  more  than  seven  members;  and  no  person  shall  be  capable  of 
being  a  delegate  for  more  than  three  years,  in  any  term  of  six  years; 
nor  shall  any  person,  being  a  delegate,  be  capable  of  holding  any 
office  under  the  United  States,  for  which  he,  or  another  for  his  bene 
fit,  receives  any  salary,  fees,  or  emolument  of  any  kind. 

Each  State  shall  maintain  its  own  delegates  in  any  meeting  of 
the  States  and  while  they  act  as  members  of  the  committee  of 
the  States. 

In  determining  questions  in  the  United  States  in  Congress  assem 
bled,  each  State  shall  have  one  vote. 

Freedom  of  speech  and  debate  in  Congress  shall  not  be  impeached 
or  questioned  in  any  court  or  place  out  of  Congress;  and  the  mem 
bers  of  Congress  shall  be  protected  in  their  persons  from  wrests  and 
imprisonments  during  the  time  of  their  going  to  and  from,  and  attend 
ance  on,  Congress,  except  for  treason,  felony  or  breach  of  the  peace. 

ART.  VI.— No  State,  without  the  consent  of  the  United  States,  in 
Congress  assembled,  shall  send  any  embassy  to,  or  receive  any  em 
bassy  from,  or  enter  into  any  conference,  agreement,  alliance,  or 
treaty,  with  any  king,  prince  or  state;  nor  shall  any  person  holding 
any  office  of  profit  or  trust  under  the  United  States,  or  any  of  them, 
accept  of  any  present,  emolument,  office,  or  title  of  any  kind  what 
ever,  from  any  king,  prince,  or  foreign  state ;  nor  shall  the  United 
States,  in  Congress  assembled,  or  any  of  them,  grant  any  title  of 
nobility. 

No  two  or  more  Stat  s  shall  enter  into  any  treaty,  confederation, 


ARTICLES  OF  CONFEDERATION.  vil 

or  alliance  whatever,  between  them,  without  the  consent  of  the  United 
States,  in  Congress  assembled,  specifying  accurately  the  purposes  for 
which  the  same  is  to  be  entered  into,  and  how  long  it  shall  continue. 

No  State  shall  lay  any  imposts  or  duties  which  may  interfere  with 
any  stipulations  in  treaties,  entered  into  by  the  United  States,  in  Con 
gress  assembled,  with  any  king,  prince,  or  state,  in  pursuance  of  any 
treaties  already  proposed  by  Congress  to  the  courts  of  France  and 
Spain. 

No  vessels  of  war  shall  be  kept  up  in  time  of  peace,  by  any  State, 
except  such  number  only  as  shall  be  deemed  necessary,  by  the  United 
States,  in  Congress  assembled,  for  the  defense  of  such  State  or  its 
trade ;  nor  shall  any  body  of  forces  be  kept  up,  by  any  State,  in  time  of 
peace,  except  such  number  only  as,  in  the  judgment  of  the  United 
States,  in  Congress  assembled,  shall  be  deemed  requisite  to  garrison 
the  forts  necessary  for  the  defense  of  such  State ;  but  every  State  shall 
always  keep  up  a  well  regulated  and  disciplined  militia,  sufficiently 
armed  and  accoutered,  and  shall  provide  and  constantly  have  ready 
for  use,  in  public  stores,  a  due  number  of  field-pieces  and  tents,  and  a 
proper  quantity  of  arms,  ammunition,  and  camp  equipage. 

No  State  shall  engage  in  any  war  without  the  consent  of  the  United 
States,  in  Congress  assembled,  unless  such  State  be  actually  invaded 
by  enemies,  or  shall  have  received  certain  advice  of  a  resolution 
being  formed  by  some  nation  of  Indians  to  invade  such  State,  and 
the  danger  is  so  imminent  as  not  to  admit  of  a  delay  till  the  United 
States,  in  Congress  assembled  can  be  consulted;  nor  shall  any  State 
grant  commissions  to  any  ships  or  vessels  of  war,  nor  letters  of 
marque  or  reprisal,  except  it  be  after  a  declaration  of  war  by  the 
United  States,  in  Congress  assembled,  and  then  only  against  the 
kingdom  or  state,  and  the  subjects  thereof,  against  which  war  has 
been  so  declared,  and  under  such  regulations  as  shall  be  established 
by  the  United  States,  in  Congress  assembled,  unless  such  State  be 
infested  by  pirates,  in  which  case  vessels  of  war  may  be  fitted  out 
for  that  occasion,  and  kept  so  long  as  the  danger  shall  continue, 
or  until  the  United  States,  in  Congress  assembled,  shall  determine 
otherwise. 

ART.  VII. — When  land  forces  are  raised  by  any  State,  for  the 
common  defense,  all  officers  of,  or  under  the  rank  of  colonel,  shall 
be  appointed  by  the  legislature  of  each  State  respectively  by  whom 
such  forces  shall  be  raised,  or  in  such  manner  as  such  State  shall 
direct,  and  all  vacancies  shall  be  filled  up  by  the  State  which  first 
made  the  appointment. 

ART.  VIII. — All  charges  of  war,  and  all  other  expenses  that  shall 
be  incurred  for  the  common  defense  or  general  welfare,  arid  allowed 
C.  G.  32. 


Vlll  APPENDIX. 

by  the  United  States,  in  Congress  assembled,  shall  be  defrayed  out 
of  a  common  treasury,  which  shall  be  supplied  by  the  several  States, 
in  proportion  to  the  value  of  all  land  within  each  State,  granted 
to,  or  surveyed  for,  any  person,  as  such  land  and  the  buildings  and 
improvements  thereon  shall  be  estimated,  according  to  such  mode 
as  the  United  States,  in  Congress  assembled,  shall,  from  time  to  time, 
direct  and  appoint.  The  taxes  for  paying  that  proportion  shall  be 
laid  and  levied  by  the  authority  and  direction  of  the  legislatures 
of  the  several  States,  within  the  time  agreed  upon  by  the  United 
States,  in  Congress  assembled. 

ART.  IX. — The  United  States,  in  Congress  assembled,  shall  have 
the  sole  and  exclusive  right  and  power  of  determining  on  peace 
and  war,  except  in  the  cases  mentioned  in  the  sixth  Article;  of  send 
ing  and  receiving  ambassadors;  entering  into  treaties  and  alliances, 
provided  that  no  treaty  of  commerce  shall  be  made,  whereby  the 
legislative  power  of  the  respective  States  shall  be  restrained  from, 
imposing  such  imposts  and  duties  on  foreigners,  as  their  own  people 
are  subjected  to,  or  from  prohibiting  the  exportation  or  importation 
of  any  species  of  goods  or  commodities  whatsoever;  of  establishing 
rules  for  deciding,  in  all  cases,  what  captures  on  land  or  water  shall 
be  legal,  and  in  what  manner  prizes  taken  by  land  or  naval  forces 
in  the  service  of  the  United  States,  shall  be  divided  or  appropriated  ; 
of  granting  letters  of  marque  and  reprisal  in  times  of  peace;  ap 
pointing  courts  for  the  trial  of  piracies  and  felonies  committed  on 
the  high  seas;  and  establishing  courts  for  receiving  and  determining 
finally  appeals  in  all  cases  of  captures;  provided  that  no  member  of 
Congress  shall  be  appointed  a  judge  of  any  of  the  said  courts. 

The  United  States,  in  Congress  assembled,  shall  also  be  the  last 
resort  on  appeal,  in  all  disputes  and  differences  now  subsisting,  or 
that  hereafter  may  arise  between  two  or  more  States  concerning 
boundary,  jurisdiction,  or  any  other  cause  whatever ;  which  authority 
shall  always  be  exercised  in  the  manner  following:  Whenever  the 
legislative  or  executive  authority,  or  lawful  agent  of  any  State  in 
controversy  with  another,  shall  present  a  petition  to  Congress,  stating 
the  matter  in  question,  and  praying  for  a  hearing,  notice  thereof  shall 
be  given  by  order  of  Congress,  to  the  legislative  or  executive  au 
thority  of  the  other  State  in  controversy,  and  a  day  assigned  for  the 
appearance  of  the  parties  by  their  lawful  agents,  who  shall  then  be 
directed  to  appoint,  by  joint  consent,  commissioners  or  judges  to  con 
stitute  a  court  for  hearing  and  determining  the  matter  in  question ; 
but  if  they  can  not  agree,  Congress  shall  name  three  persons  out  of 
each  of  the  United  States,  and  from  the  list  of  such  persons  each 
party  shall  alternately  strike  out  one,  the  petitioners  beginning,  until 


ARTICLES  OF  CONFEDERATION.  IX 

the  number  shall  be  reduced  to  thirteen;  and  from  that  number  not 
less  than  seven  nor  more  than  nine  names,  as  Congress  shall  direct, 
shall,  in  the  presence  of  Congress,  be  drawn  out  by  lot;  and  the  per 
sons  whose  names  shall  be  so  drawn,  or  any  five  of  them,  shall  be 
commissioners  or  judges,  to  hear  and  finally  determine  the  contro 
versy,  so  always  as  a  major  part  of  the  judges,  who  shall  hear  the 
cause,  shall  agree  in  the  determination ;  and  if  either  party  shall 
neglect  to  attend  at  the  day  appointed,  without  showing  reasons 
which  Congress  shall  judge  sufficient,  or  being  present,  shall  refuse 
to  strike,  the  Congress  shall  proceed  to  nominate  three  persons  out 
of  each  State,  and  the  secretary  of  Congress  shall  strike  in  behalf 
of  such  party  absent  or  refusing;  and  the  judgment  and  sentence 
of  the  court,  to  be  appointed  in  the  manner  before  prescribed,  shall 
be  final  and  conclusive;  and  if  any  of  the  parties  shall  refuse  to 
submit  to  the  authority  of  such  court,  or  to  appear  or  defend  their 
claim  or  cause,  the  court  shall  nevertheless  proceed  to  pronounce 
sentence  or  judgment,  which  shall  in  like  manner  be  final  and  de 
cisive ;  the  judgment  or  sentence  and  other  proceedings  being  in 
either  case  transmitted  to  Congress,  and  lodged  among  the  acts  of 
Congress  for  the  security  of  the  parties  concerned  ;  provided,  that 
every  commissioner,  before  he  sits  in  judgment,  shall  take  an  oath, 
to  be  administered  by  one  of  the  judges  of  the  supreme  or  superior 
court  of  the  State  where  the  cause  shall  be  tried,  "  well  and  truly 
to  hear  and  determine  the  matter  in  question,  according  to  the  best 
of  his  judgment,  without  favor,  affection,  or  hope  of  reward."  Pro 
vided,  also,  that  no  State  shall  be  deprived  of  territory  for  the  benefit 
of  the  United  States. 

All  controversies  concerning  the  private  right  of  soil  claimed 
under  different  grants  of  two  or  more  States,  whose  jurisdictions,  as 
they  may  respect  such  lands,  and  the  States  which  passed  such 
grants  are  adjusted,  the  said  grants  or  either  of  them  being  at  the 
same  time  claimed  to  have  originated  antecedent  to  such  settlement 
of  jurisdiction,  shall,  on  the  petition  of  either  party  to  the  Congress 
of  the  United  States,  be  finally  determined,  as  near  as  may  be,  in  the 
same  manner  as  is  before  prescribed  for  deciding  disputes  respecting 
territorial  jurisdiction  between  different  States. 

The  United  States,  in  Congress  assembled,  shall  also  have  the 
sole  and  exclusive  right  and  power  of  regulating  the  alloy  and 
value  of  coin  struck  by  their  own  authority,  or  by  that  of  the 
respective  States;  fixing  the  standard  of  weights  and  measures 
throughout  the  United  Stales;  regulating  the  trade  and  managing 
all  affairs  with  the  Indians,  not  members  of  any  of  the  States; 
provided  that  the  legislative  right  of  any  State,  within  its  own 


X  APPENDIX. 

limits,  be  not  infringed  or  violated ;  establishing  and  regulating 
post-offices  from  one  State  to  another,  throughout  all  the  United 
States,  and  exacting  such  postage  on  the  papers  passing  through 
the  same,  as  may  be  requisite  to  defray  the  expenses  of  the  said 
office ;  appointing  all  officers  of  the  land  forces  in  the  service  of 
the  United  States,  excepting  regimental  officers;  appointing  all 
the  officers  of  the  naval  forces,  and  commissioning  all  officers  what 
ever  in  the  service  of  the  United  States;  making  rules  for  the 
government  and  regulation  of  the  said  land  and  naval  forces,  and 
directing  their  operations. 

The  United  States,  in  Congress  assembled,  shall  have  authority  to 
appoint  a  committee,  to  sit  in  the  recess  of  Congress,  to  be  denom 
inated,  "  A  Committee  of  the  States,"  and  to  consist  of  one  delegate 
from  each  State ;  and  to  appoint  such  other  committees  and  civil 
officers  as  may  be  necessary  for  managing  the  general  affairs  of  the 
United  States  under  their  direction;  to  appoint  one  of  their  num 
ber  to  preside;  provided  that  no  person  be  allowed  to  serve  in  the 
office  of  president  more  than  one  year  in  any  term  of  three  years; 
to  ascertain  the  necessary  sums  of  money  to  be  raised  for  the  service 
of  the  United  States,  and  to  appropriate  and  apply  the  same  for 
defraying  the  public  expenses;  to  borrow  money  or  emit  bills  on 
the  credit  of  the  United  States,  transmitting  every  half  year  to  the 
respective  States  an  account  of  the  sums  of  money  so  borrowed 
or  emitted;  to  build  and  equip  a  navy;  to  agree  upon  the  num 
ber  of  land  forces,  and  to  make  requisitions  from  each  State  for 
its  quota,  in  proportion  to  the  number  of  white  inhabitants  in  such 
State,  which  requisition  shall  be  binding;  and  thereupon  the 
Legislature  of  each  State  shall  appoint  the  regimental  officers,  raise 
the  men,  and  clothe,  arm,  and  equip  them,  in  a  soldier-like  manner, 
at  the  expense  of  the  United  States;  and  the  officers  and  men  so 
clothed,  armed,  and  equipped  shall  march  to  the  place  appointed, 
and  within  the  time  agreed  on  by  the  United  States,  in  Congress 
assembled;  but  if  the  United  States,  in  Congress  assembled,  shall,  on 
consideration  of  circumstances,  judge  proper  that  any  State  should 
not  raise  men,  or  should  raise  a  smaller  number  than  its  quota,  and 
that  any  other  State  should  raise  a  greater  number  of  men  than  the 
quota  thereof,  such  extra  number  shall  be  raised,  officered,  clothed, 
armed,  and  equipped  in  the  same  manner  as  the  quota  of  such  State, 
unless  the  Legislature  of  such  State  shall  judge  that  such  extra 
number  can  not  be  safely  spared  out  of  the  same,  in  which  case  they 
shall  raise,  officer,  clothe,  arm,  and  equip,  as  many  of  such  extra 
number  as  they  judge  can  be  safely  spared,  and  the  officers  and  men 
so  clothed,  armed,  and  equipped,  shall  march  to  the  place  appointed, 


ARTICLES  OF  CONFEDERATION.  xi 

and  within  the  time  agreed  on  by  the  United  States,  in  Congress 
assembled. 

The  United  States,  in  Congress  assembled,  shall  never  engage  in 
a  war,  nor  grant  letters  of  marque  and  reprisal  in  time  of  peace, 
nor  enter  into  any  treaties  or  alliances,  nor  coin  money,  nor  regulate 
the  value  thereof,  nor  ascertain  the  sums  and  expenses  necessary 
for  the  defense  and  welfare  of  the  United  States,  or  any  of  them, 
nor  emit  bills,  nor  borrow  money  on  the  credit  of  the  United  States, 
nor  appropriate  money,  nor  agree  upon  the  number  of  vessels  of  war 
(o  be  built  or  purchased,  or  the  number  of  land  or  sea  forces  to  be 
raised,  nor  appoint  a  commander-in-chief  of  the  army  or  navy,  un 
less  nine  States  assent  to  the  same,  nor  shall  a  question  on  any  other 
point,  except  for  adjourning  from  day  to  day,  be  determined,  unless  by 
the  votes  of  a  majority  of  the  United  States,  in  Congress  assembled. 

The  Congress  of  the  United  States  shall  have  power  to  adjourn  to 
any  time  within  the  year,  and  to  any  place  within  the  United  States, 
so  that  no  period  of  adjournment  be  for  a  longer  duration  than  the 
space  of  six  months,  and  shall  publish  the  journal  of  their  proceed 
ings  monthly,  except  such  parts  thereof  relating  to  treaties,  alliances, 
or  military  operations,  as  in  their  judgment  require  secrecy;  and  the 
yeas  and  nays  of  the  delegates  of  each  State,  on  any  question,  shall  be 
entered  on  the  journal,  when  it  is  desired  by  any  delegate;  and  the 
delegates  of  a  State,  or  any  of  them,  at  his  or  their  request,  shall  be 
furnished  with  a  transcript  of  the  said  journal,  except  such  parts 
as  are  above  excepted,  to  lay  before  the  legislatures  of  the  several 
States. 

ART.  X. — The  committee  of  the  States,  or  any  nine  of  them,  shall 
be  authorized  to  execute,  in  the  recess  of  Congress,  such  of  the 
powers  of  Congress  as  the  United  States,  in  Congress  assembled,  by 
the  consent  of  nine  States,  shall,  from  time  to  time,  think  expedient 
to  vest  them  with ;  provided  that  no  power  be  delegated  to  the  said 
committee,  for  the  exercise  of  which,  by  the  articles  of  confedera 
tion,  the  voice  of  nine  States,  in  the  Congress  of  the  United  States 
assembled  is  requisite. 

ART.  XT. —  Canada  acceding  to  this  confederation,  and  joining 
in  the  measures  of  the  United  States,  shall  be  admitted  into,  and 
entitled  to  all  the  advantages  of  this  Union  :  but  no  other  colony 
shall  be  admitted  into  the  same,  unless  such  admission  be  agreed  to 
by  nine  States. 

ART.  X1T. — All  bills  of  credit  emitted,  moneys  borrowed,  and 
debts  contracted  by  or  under  the  authority  of  Congress,  before  the 
assembling  of  the  United  States,  in  pursuance  of  the  present  con 
federation,  shall  be  deemed  and  considered  as  a  charge  against  the 


Xll  APPENDIX. 

United  States,  for  payment  and  satisfaction  whereof  the  said  United 
States  and  the  public  faith  are  hereby  solemnly  pledged. 

ART.  XIII. — Every  State  shall  abide  by  the  determinations  of  the 
United  States,  in  Congress  assembled,  on  all  questions  which  by  this 
Confederation  are  submitted  to  them.  And  the  Articles  of  this  Con 
federation  shall  be  inviolably  observed  by  every  State,  and  the  Union 
shall  be  perpetual ;  nor  shall  any  alteration  at  any  time  hereafter- 
be  made  in  any  of  them,  unless  such  alteration  be  agreed  to  in  a 
Congress  of  the  United  States,  and  be  afterwards  confirmed  by  the 
legislatures  of  every  State. 

And  whereas  it  hath  pleased  the  great  Governor  of  the  world  to 
incline  the  hearts  of  the  legislatures  we  respectively  represent 
in  Congress,  to  approve  of,  and  to  authorize  us  to  ratify  the  said 
Articles  of  Confederation  and  perpetual  Union,  Know  ye,  that  we, 
the  undersigned  delegates,  by  virtue  of  the  power  and  authority  to 
us  given  for  that  purpose,  do,  by  these  presents,  in  the  name  and  in 
behalf  of  our  respective  constituents,  fully  and  entirely  ratify  and 
confirm  each  and  every  of  the  said  Articles  of  Confederation  and 
perpetual  Union,  and  all  and  singular  the  matters  and  things  therein 
contained.  And  we  do  further  solemnly  plight  and  engage  the 
faith  of  our  respective  constituents,  that  they  shall  abide  by  the 
determinations  of  the  United  States,  in  Congress  assembled,  on  all 
questions  which  by  the  said  Confederation  are  submitted  to  them; 
and  that  the  Articles  thereof  shall  be  inviolably  observed  by  the 
States  we  respectively  represent,  and  that  the  Union  shall  be  per 
petual.  In  witness  whereof,  we  have  hereunto  set  our  hands  in 
Congress.  Done  at  Philadelphia,  in  the  State  of  Pennsylvania,  the 
ninth  day  of  July,  in  the  year  of  our  Lord  1778,  and  in  the  third 
year  of  the  Independence  of  America. 


ORDINANCE  OF  1787, 

JULY  13,  1787. 


AN  ORDINANCE  FOR  THE  GOVERNMENT  OF  THE  TERRITORY  OF  THE 
UNITED  STATES,  NORTH-WEST  OF  THE  RIVER  OHIO. 


Be  it  ordained,  by  the  United  States,  in  Congress  assembled,  that  the 
said  Territory,  for  the  purposes  of  temporary  government,  be  one 
district ;  subject,  however,  to  be  divided  into  two  districts,  as  future 
circumstances  may,  in  the  opinion  of  Congress,  make  it  expedient. 

Be  it  ordained,  by  the  authority  aforesaid,  that  the  estates,  both  of 
resident  and  non-resident  proprietors  in  the  said  Territory,  dying 
intestate,  shall  descend  to,  and  be  distributed  among,  their  children, 
and  the  descendants  of  a  deceased  child,  in  equal  parts ;  the  descend 
ants  of  a  deceased  child  or  grandchild,  to  take  the  share  of  their 
deceased  parent,  in  equal  parts,  among  them;  and  where  there  shall 
be  no  children  or  descendants,  then  in  equal  parts  to  the  next  of  kin,  in 
equal  degree;  and  among  collaterals,  the  children  of  a  deceased  brother 
or  sister  of  the  intestate,  shall  have,  in  equal  parts,  among  them,  their 
deceased  parent's  share;  and  there  shall  in  no  case  be  a  distinction 
between  kindred  of  the  whole  and  half  blood ;  saving  in  all  cases  to 
the  widow  of  the  intestate,  her  third  part  of  the  real  estate  for  life, 
and  one-third  part  of  the  personal  estate;  and  this  law  relative  to 
descents  and  dower,  shall  remain  in  full  force  until  altered  by  the 
legislature  of  the  district.  And  until  the  governor  and  judges  shall 
adopt  laws  as  hereinafter  mentioned,  estates  in  the  said  Territory  may 
be  devised  or  bequeathed  by  wills  in  writing,  signed  and  sealed  by 
him  or  her,  in  whom  the  estate  may  be  (being  of  full  age),  and  attested 
by  three  witnesses,  and  real  estates  may  be  conveyed  by  lease  and 
release,  or  bargain  and  sale,  signed,  sealed,  and  delivered  by  the  per 
son,  being  of  full  age,  in  whom  the  estate  may  be,  and  attested  by  two 
witnesses,  provided  such  wills  be  duly  proved,  and  such  conveyances 
be  acknowledged,  or  the  execution  thereof  duly  proved,  and  be  re 
corded  within  one  year  after  proper  magistrates,  courts,  and  registers 

(xiii) 


XIV  APPENDIX. 

shall  be  appointed  for  that  purpose;  and  personal  property  may  be 
transferred  by  delivery,  saving,  however,  to  the  French  and  Canadian 
inhabitants,  and  other  settlers  of  the  Kaskaskias,  Saint  Vincents,  and 
the  neighboring  villages,  who  have  heretofore  professed  themselves 
citizens  of  Virginia,  their  laws  and  customs  now  in  force  among  them, 
relative  to  descent  and  conveyance  o£  property. 

Be  it  ordained,  by  the  authority  aforesaid,  that  there  Bhall  be  ap 
pointed  from  time  to  time,  by  Congress,  a  governor,  whose  commis 
sion  shall  continue  in  force  for  the  term  of  three  years,  unless  sooner 
revoked  by  Congress;  he  shall  reside  in  the  district,  and  have  a  free 
hold  estate  therein,  in  one  thousand  acres  of  land,  while  in  the  exercise 
of  his  office.  There  shall  be  appointed  from  time  to  time,  by  Congress, 
a  secretary,  whose  commission  shall  continue  in  force  for  four  years, 
unless  sooner  revoked;  he  shall  reside  in  the  district,  and  have  a  free 
hold  estate  therein,  in  five  hundred  acres  of  land,  while  in  the  exercise 
of  his  office;  it  shall  be  his  duty  to  keep  and  preserve  the  acts  and 
laws  passed  by  the  legislature,  and  the  public  records  of  the  district, 
and  the  proceedings  of  the  governor  in  his  executive  department;  and 
transmit  authentic  copies  of  such  acts  and  proceedings,  every  six 
months,  to  the  secretary  of  Congress.  There  shall  also  be  appointed 
a  court  to  consist  of  three  judges,  any  two  of  whom  to  form  a  court, 
who  shall  have  a  common  law  jurisdiction,  and  reside  in  the  district, 
and  have  each  therein  a  freehold  estate,  in  five  hundred  acres  of  land, 
while  in  the  exercise  of  their  offices;  and  their  commissions  shall  con 
tinue  in  force  during  good  behavior. 

The  governor  and  judges,  or  a  majority  of  them,  shall  adopt  and 
publish  in  the  district,  such  laws  of  the  original  States,  criminal 
and  civil,  as  may  be  necessary,  and  best  suited  to  the  circumstances 
of  the  district,  and  report  them  to  Congress,  from  time  to  time,  which 
laws  shall  be  in  force  in  the  district  until  the  organization  of  the 
general  assembly  therein,  unless  disapproved  of  by  Congress;  but 
afterwards,  the  legislature  shall  have  authority  to  alter  them  as 
they  shall  think  fit. 

The  governor  for  the  time  being,  shall  be  commander-in-chief 
of  the  militia,  appoint  and  commission  all  officers  in  the  same, 
below  the  rank  of  general  officers.  All  general  officers  shall  be 
appointed  and  commissioned  by  Congress. 

Previous  to  the  organization  of  the  general  assembly,  the  governor 
shall  appoint  such  magistrates  and  other  civil  officers,  in  each  county 
or  township,  as  he  shall  find  necessary  for  the  preservation  of  the 
peace  and  good  order  in  the  same.  After  the  general  assembly  shall 
be  organized,  the  powers  and  duties  of  magistrates  and  other  civil 
officers  shall  be  regulated  and  defined  by  the  said  assembly;  but 


ORDINANCE  OF  1787.  XV 

all  magistrates  and  other  civil  officers,  not  herein  otherwise  directed, 
shall,  during  the  continuance  of  this  temporary  government,  be  ap 
pointed  by  the  governor. 

For  the  prevention  of  crimes  and  injuries,  the  laws  to  be  adopted 
or  made,  shall  have  force  in  all  parts  of  the  district,  and  for  the 
execution  of  process,  criminal  and  civil,  the  governor  shall  make 
proper  divisions  thereof;  and  he  shall  proceed  from  time  to  time, 
as  circumstances  may  require,  to  lay  out  the  parts  of  the  district  in 
which  the  Indian  titles  shall  have  been  extinguished,  into  counties 
and  townships,  subject,  however,  to  such  alterations  as  may  thereafter 
be  made  by  the  legislature. 

So  soon  as  there  shall  be  five  thousand  free  male  inhabitants,  of 
full  age,  in  the  district,  upon  giving  proof  thereof  to  the  governor, 
they  shall  receive  authority,  with  time  and  place,  to  elect  repre 
sentatives  from  their  counties  or  townships,  to  represent  them  in 
the  general  assembly ;  provided,  that  for  every  five  hundred  free 
male  inhabitants  there  shall  be  one  representative,  and  so  on  pro 
gressively  with  the  number  of  free  male  inhabitants,  shall  the  right 
of  representation  increase,  until  the  number  of  representatives  shall 
amount  to  twenty-five,  after  which  the  number  and  proportion  of 
representatives  shall  be  regulated  by  the  legislature;  provided,  that 
no  person  be  eligible  or  qualified  to  act  as  a  representative,  unless 
he  shall  have  been  a  citizen  of  one  of  the  United  States  three  years, 
and  be  a  resident  in  the  district,  or  unless  he  shall  have  resided  in  the 
district  three  years,  and  in  either  case  shall  likewise  hold  in  his  own 
right,  in  fee  simple,  two  hundred  acres  of  land  within  the  same; 
provided,  a/so,  that  a  freehold  in  fifty  acres  of  land  in  the  district, 
having  been  a  citizen  of  one  of  the  States,  and  being  resident  in  the 
district,  or  the  like  freehold  and  two  years  residence  in  the  district, 
shall  be  necessary  to  qualify  a  man  as  an  elector  of  a  representative. 

The  representatives  thus  elected,  shall  serve  for  the  term  of  two 
years,  and  in  case  of  the  death  of  a  representative,  or  removal  from 
office,  the  governor  shall  issue  a  writ  to  the  county  or  township  for 
which  he  was  a  member,  to  elect  another  in  his  stead,  to  serve  for  the 
residue  of  the  term. 

The  general  assembly,  or  legislature,  shall  consist  of  the  governor, 
legislative  council,  and  a  house  of  representatives.  The  legislative 
council  shall  consist  of  five  members,  to  continue  in  office  for  five  years, 
unless  sooner  removed  by  Congress,  any  three  of  whom  to  be  a  quo 
rum,  and  the  members  of  the  council  shall  be  nominated  and  ap 
pointed  in  the  following  manner,  to-wit:  as  soon  as  representatives 
shall  be  elected,  the  governor  shall  appoint  a  time  and  place  for  them 
to  meet  together,  and  when  met,  they  shall  nominate  ten  persons, 
C.  G.  33. 


XVI  APPENDIX. 

residents  iu  the  district,  and  each  possessed  of  a  freehold  in  five  hun 
dred  acres  of  land,  and  return  their  names  to  Congress;  five  of  whom 
Congress  shall  appoint  and  commission  to  serve  as  aforesaid  ;  and  when 
ever  a  vacancy  shall  happen  in  the  council,  by  death  or  removal  from 
office,  the  house  of  representatives  shall  nominate  two  persons,  quali 
fied  as  aforesaid,  for  each  vacancy,  and  return  their  names  to  Con 
gress,  one  of  whom  Congress  shall  appoint  and  commission  for  the 
residue  of  the  term;  and  every  five  years,  four  months  at  least 
before  the  expiration  of  the  time  of  service  of  the  members  of 
council,  the  said  house  shall  nominate  ten  persons,  qualified  as 
aforesaid,  and  return  their  names  to  Congress,  five  of  whom  Con 
gress  shall  appoint  and  commission  to  serve  as  members  of  the 
council  five  years,  unless  sooner  removed. 

And  the  governor,  legislative  council,  and  house  of  representa* 
tives,  shall  have  authority  to  make  laws  in  all  cases  for  the  good 
government  of  the  district,  not  repugnant  to  the  principles  and 
articles  in  this  ordinance  established  and  declared.  And  all  bills 
having  passed  by  a  majority  in  the  house,  and  by  a  majority  in 
the  council,  shall  be  referred  to  the  governor  for  his  assent ;  but 
no  bill  or  legislative  act  whatever  shall  be  of  any  force  without 
his  assent.  The  governor  shall  have  power  to  convene,  prorogue, 
and  dissolve  the  general  assembly,  when  in  his  opinion,  it  shall  be 
expedient. 

The  governor,  judges,  legislative  council,  secretary,  and  such  other 
officers  as  Congress  shall  appoint  in  the  district,  shall  take  an  oath  or 
affirmation  of  fidelity,  and  of  office  —  the  governor  before  the  presi 
dent  of  Congress,  and  all  other  officers  before  the  governor.  As  soon 
as  a  legislature  shall  be  formed  in  the  district,  the  council  and  house, 
assembled  in  one  room,  shall  have  authority,  by  joint  ballot  to  elect 
a  delegate  to  Congress,  who  shall  have  a  seat  in  Congress,  with  a  right 
of  debating,  but  not  of  voting,  during  this  temporary  government. 

And  for  extending  the  fundamental  principles  of  civil  and  religious 
liberty,  which  form  the  basis  whereon  these  republics,  their  laws  and 
constitutions,  are  erected ;  to  fix  and  establish  those  principles  as  the 
basis  of  all  laws,  constitutions,  and  governments,  which  forever  here 
after  shall  be  formed  in  the  said  Territory ;  to  provide  also  for  the 
establishment  of  States,  and  permanent  government  therein,  and  for 
their  admission  to  a  share  in  the  federal  councils  on  an  equal  footing 
with  the  original  States,  at  as  early  periods  as  may  be  consistent  with 
the  general  interest. 

It  is  hereby  ordained  and  deckired,  by  the  authority  aforesaid,  that 
the  following  articles  shall  be  considered  as  articles  of  compact 
between  the  original  States  and  the  people  and  States  in  the  said 


ORDINANCE  OF  1787.  XV11 

Territory,  and  forever  remain  unalterable,  unless  by  common  con 
sent,  to-wit: 

ARTICLE  I. — No  person  demeaning  himself  in  a  peaceable  and 
orderly  manner,  shall  -ever  be  molested  on  account  of  his  mode  of 
worship  or  religious  sentiments  in  the  said  Territory. 

ART.  II. — The  inhabitants  of  the  said  Territory  shall  always  be  en 
titled  to  the  benefit  of  the  writ  of  habeas  corpus,  and  of  trial  by  jury;  of 
a  proportionate  representation  of  the  people  in  the  legislature,  and  of 
judicial  proceedings  according  to  the  course  of  the  common  law;  all 
persons  shall  be  bailable  unless  for  capital  offenses,  where  the  proof 
shall  be  evident  or  the  presumption  great;  all  fines  shall  be  moderate, 
and  no  cruel  or  unusual  punishments  shall  be  inflicted;  no  man  shall 
be  deprived  of  his  liberty  or  property  but  by  the  judgment  of  his  peers, 
or  the  law  of  the  land  ;  and  should  the  public  exigencies  make  it  neces 
sary  for  the  common  preservation  to  take  any  person's  property,  or 
to  demand  his  particular  services,  full  compensation  shall  be  made 
for  the  same;  and  in  the  just  preservation  of  rights  and  property,  it  is 
understood  and  declared,  that  no  law  ought  ever  to  be  made,  or  have 
force  in  the  said  Territory,  that  shall  in  any  manner  whatever,  inter 
fere  with,  or  affect  private  contracts  or  engagements,  bonafide  and  with 
out  fraud  previously  formed. 

ART.  III. — Religion,  morality,  and  knowledge,  being  necessary  to 
good  government  and  the  happiness  of  mankind,  schools,  and  the 
means  of  education  shall  forever  be  encouraged.  The  utmost  good 
faith  shall  always  be  observed  towards  the  Indians;  their  lands  and 
property  shall  never  be  taken  from  them  without  their  consent;  and 
in  their  property,  rights,  and  liberty,  they  shall  never  be  invaded  or 
disturbed,  unless  in  just  and  lawful  wars  authorized  by  Congress;  but 
laws  founded  in  justice  and  humanity,  shall,  from  time  to  time,  be 
made,  for  preventing  wrongs  being  done  to  them,  and  for  preserving 
peace  and  friendship  with  them. 

ART.  IV. — The  said  Territory,  and  the  States  which  may  be  formed 
therein,  shall  forever  remain  a  part  of  this  confederacy  of  the  United 
States  of  America,  subject  to  the  Articles  of  Confederation,  and  to 
such  alteration  therein,  as  shall  be  constitutionally  made;  and  to  all 
the  acts  and  ordinances  of  the  United  States,  in  Congress  assembled, 
conformable  thereto.  The  inhabitants  and  settlers  in  the  said  Territory 
shall  be  subject  to  pay  a  part  of  the  federal  debts  contracted  or  to  be 
contracted,  and  a  proportional  part  of  the  expenses  of  g<|frernment,  to 
be  apportioned  on  them,  by  Congress,  according  to  the  same  common 
rule  and  measure  by  which  apportionments  thereof  shall  be  made  on 
the  other  States;  and  the  taxes  for  paying  their  proportion,  shall  be 
laid  and  levied  by  the  authority  and  direction  of  the  legislatures  of 


XV111  APPENDIX. 

the  district,  or  districts,  or  new  States,  as  in  the  original  States,  within 
the  time  agreed  upon  by  the  United  States,  in  Congress  assembled. 
The  legislatures  of  those  districts,  or  new  States,  shall  never  interfere 
with  the  primary  disposal  of  the  soil  by  the  United  States,  in  Congress 
assembled,  nor  with  any  regulations  Congress  may  find  necessary  for 
securing  the  title  in  such  soil  to  the  bonajide  purchasers.  No  tax  shall 
be  imposed  on  lands  the  property  of  the  United  States;  and  in  no  case 
shall  non-resident  proprietors  be  taxed  higher  than  residents.  The 
navigable  waters  leading  into  the  Mississippi  and  St.  Lawrence,  and 
the  carrying  places  between  the  same,  shall  be  common  highways,  and 
forever  free,  as  well  to  the  inhabitants  of  the  said  Territory,  as  to  the 
citizens  of  the  United  States,  and  those  of  any  other  States  that  may  be 
admitted  into  the  confederacy,  without  any  tax,  impost,  or  duty  therefor. 
ART.  V. — There  shall  be  formed  in  the  said  Territory  not  less  than 
three,  nor  more  than  five  States;  and  the  boundaries  of  the  States,  as 
soon  as  Virginia  shall  alter  her  act  of  cession  and  consent  to  the 
same,  shall  become  fixed  and  established  as  follows,  to-wit:  The 
western  State  in  the  said  Territory,  shall  be  bounded  by  the  Mississippi, 
the  Ohio,  and  the  Wabash  rivers;  a  direct  line  drawn,  from  the  Wabash 
and  Post  Vincents  due  north  to  the  territorial  line  between  the  United 
States  and  Canada,  and  by  the  said  territorial  line  to  the  Lake  of  the 
Woods  and  Mississippi.  The  middle  State  shall  be  bounded  by  the 
said  direct  line,  the  Wabnsh  from  Post  Vincents  to  the  Ohio,  by  the 
Ohio,  by  a  direct  line  drawn  due  north  from  the  mouth  of  the  Great 
Miami  to  the  said  territorial  line,  and  by  said  territorial  line.  The 
eastern  State  shall  be  bounded  by  the  last  mentioned  direct  line,  the 
Ohio,  Pennsylvania,  and  the  said  territorial  line;  provided,  however, 
and  it  is  further  understood  and  declared,  that  the  boundaries  of  these 
three  States  shall  be  subject  so  far  to  be  altered,  that  if  Congress  shall 
hereafter  find  it  expedient,  they  shall  have  authority  to  form  one  or 
two  States  in  that  part  of  the  said  Territory  which  lies  north  of  an 
east  and  west  line  drawn  through  the  southerly  bend  or  extreme  of 
lake  Michigan  :  and  whenever  any  of  the  said  States  shall  have  sixty 
thousand  free  inhabitants  therein,  such  State  shall  be  admitted  by  its 
delegates,  into  the  Congress  of  the  United  States,  on  an  equal  footing 
Avith  the  original  States,  in  all  respects  whatsoever;  and  shall  be  at 
liberty  to  form  a  permanent  constitution  and  State  government: 
Provided,  the  constitution  and  government  so  to  be  formed  shall  be 
republican,  Und  in  conformity  to  the  principles  contained  in  these 
articles;  and,  so  far  as  it  can  be  consistent  with  the  general  interest  of 
the  confederacy,  such  admission  shall  be  allowed  at  an  earlier  period, 
and  when  there  may  be  a  less  number  of  free  inhabitants  in  the  State 
than  sixtv  thousand. 


CONSTITUTION  OF  THE  UNITED  STATES.  xix 

ART.  VI. — There  shall  be  neither  slavery  nor  involuntary  servitude 
in  the  said  Territory,  otherwise  than  in  the  punishment  of  crimes 
whereof  the  party  shall  have  been  duly  convicted :  I'rovided,  always, 
that  any  person  escaping  into  the  same,  from  whom  labor  or  service 
is  lawfully  claimed  in  any  one  of  the  original  States,  such  fugitive 
may  be  lawfully  reclaimed  and  conveyed  to  the  person  claiming  his 
or  her  labor  or  service  as  aforesaid. 

"  Be  it  ordained,  by  the  authority  aforesaid,  that  the  resolutions  of 
the  23d  of  April,  1784,  relative  to  the  subject  of  this  ordinance,  be, 
and  the  same  are  hereby  repealed  and  declared  null  and  void. 


CONSTITUTION 

OF   THE 

UNITED  STATES  OF  AMERICA. 


WE,  the  people  of  the  United  States,  in  order. to  form  a  more 
perfect  union,  establish  justice,  insure  domestic  tranquillity,  provide 
for  the  common  defense,  promote  the  general  welfare,  and  secure 
the  blessings  of  liberty  to  ourselves  and  our  posterity,  do  ordain  and 
establish  this  Constitution  for  the  United  States  of  America. 

ARTICLE  I.— SECTION  1. 

1.  All  legislative  powers  herein  granted  shall  be  vested  in  a  Con 
gress  of  the  United  States,  which  shall  consist  of  a  Senate  and  House 
of  Representatives. 

SECTION  2. 

1.  The  House  of  Representatives  shall  be  composed  of  members 
chosen  every  second  year  by  the  people  of  the  several  States;  and  the 
electors  in  each  State  shall  have  the  qualifications  requisite  for  elec 
tors  of  the  most  numerous  branch  of  the  State  legislature. 

2.  No  person  shall  be  a  Representative  who  shall  not  have  attained 
to  the  age  of  twenty-five  years,  and  been  seven  years  a  citizen  of  the 
United  States,  and  who  shall  not,  when  elected,  be  an  inhabitant  of 
that  State  in  which  he  shall  be  chosen. 


XX  APPENDIX. 

3.  Representatives  and  direct  taxes  shall  be  apportioned  among 
the  several  States  which  may  be  included  within  this  Union,  accord 
ing  to  their  respective  numbers,  which  shall  be  determined  by  adding 
to  the  whole  number  of  free  persons,  including  those  bound  to  service 
for  a  term  of  years,  and  excluding  Indians  not  taxed,  three-fifths  of 
all  other  persons.     The  actual  enumeration  shall  be  made  within 
three  years  after  the  first   meeting  of  the  Congress  of  the  United 
States,  and  within  every  subsequent  term  often  years,  in  such  manner 
as  they  shall  by  law  direct.    The  number  of  Representatives  shall  not 
exceed  one  for  every  thirty  thousand,  but  each  State  shall  have  at 
least  one  Representative ;  and  until  such  enumeration  shall  be  made, 
the  State  of  New  Hampshire  shall  be  entitled  to  choose  three;  Massa 
chusetts,  eight ;  Rhode  Island  and  Providence  Plantations,  one;  Con 
necticut,  five;    New  York,  six;    New  Jersey,  four;    Pennsylvania, 
eight;  Delaware,  one;  Maryland,  six  ;  Virginia,  ten  ;  North  Carolina, 
five  ;  South  Carolina,  five  ;  and  Georgia,  three. 

4.  When  vacancies  happen  in  the  representation  from  any  State, 
the  executive  authority  thereof  shall  issue  writs  of  election  to  fill 
such  vacancies. 

5.  The  House  of  Representatives  shall  choose  their  Speaker  and 
other  officers,  and  shall  have  the  sole  power  of  impeachment. 

SECTION  3. 

1.  The  Senate  of  the  United   States   shall   be   composed   of  two 
Senators  from  each  State,  chosen  by  the  legislature  thereof,  for  six 
years;   and  each  Senator  shall  have  one  vote. 

2.  Immediately  after  they  shall  be  assembled  in  consequence  of 
the  first  election,  they  shall  be  divided,  as  equally  as  may  be  into 
three  classes.     The  seats  of  the  Senators  of  the  first  class  shall  be 
vacated  at  the  expiration  of  the  second  year,  of  the  second  class 
at  the  expiration  of  the  fourth  year,  and  of  the  third  class  at  the 
expiration  of  the  sixth  year,  so  that  one-third  may  be  chosen  every 
second  year;  and  if  vacancies  happen,  by  resignation,  or  otherwise, 
during   the  recess  of%  the   legislature    of   any  State,  the   executive 
thereof  may  make  temporary  appointments  until  the  next  meeting 
of  the  legislature,  which  shall  then  fill  such  vacancies. 

3.  No  person  shall  be  a  Senator  who  shall  not  have  attained  to 
the  age  of  thirty  years,  and  been  nine  years  a  citizen  of  the  United 
States,  and  who  shall   not,  when   elected,  be  an  inhabitant  of  that 
State  for  which  he  shall  be  chosen. 

4.  The  Vice-President  of  the  United  States  shall  be  President  of 
the  Senate,  but  shall  have  no  vote,  unless  they  be  equally  divided. 


CONSTITUTION  OF  THE  UNITED  STATES.  XXI 

5.  The  Senate  shall  choose  their  other  officers,  and  also  a  Presi 
dent  pro-tempore,  in  the  absence  of  the  Vice-President,  or  when   he 
shall  exercise  the  office  of  President  of  the  United  States. 

6.  The  Senate  shall  have  the  sole  power  to  try  all  impeachments. 
When  sitting  for  that  purpose,  they  shall  be  on  oath  or  affirmation. 
When  the  President  of  the  United  States  is  tried,  the  Chief  Justice 
shall  preside ;   and  no  person  shall  be  convicted  without  the  con 
currence  of  two-thirds  of  the  members  present. 

7.  Judgment  in  cases  of  impeachment  shall  not  extend  further 
than  to  removal  from  office,  and  disqualification  to  hold  and  enjoy 
any  office  of  honor,  trust,  or  profit,  under  the  United  States;   but 
the  party  convicted  shall  nevertheless  be  liable  and  subject  to  in 
dictment,  trial,  judgment,  and  punishment,  according  to  law. 

SECTION  4. 

1.  The  times,  places,  and   manner  of  holding  elections  for  Sen 
ators  and  Representatives  shall  be  prescribed  in  each  State  by  the 
legislature   thereof;    but    the    Congress    may,  at   any  time,  by  law, 
make  or  alter  such  regulations,  except  as  to  the  places  of  choos 
ing  Senators. 

2.  The  Congress  shall  assemble  at  least  once  in   every  year,  and 
such   meeting   shall   be   on    the   first   Monday  in   December,  unless 
they  shall  by  law  appoint  a  different  day. 

SECTION  5. 

1.  Each  House  shall  be  the  judge  of  the  elections,  returns,  and 
qualifications   of  its   own    members,  and   a   majority  of  each  shall 
constitute   a   quorum   to   do  business;    but    a   smaller   number  may 
adjourn  from  day  to   day,  and   may  be   authorized   to   compel   the 
attendance   of  absent  members,  in   such    manner  and   under  such 
penalties  as  each   House   may  provide. 

2.  Each  House  may  determine  the  rules  of  its  proceedings,  pun 
ish  its  members  for  disorderly  behavior,  and,  with  the  concurrence 
of  two-thirds,  expel  a  member. 

3.  Each  House  shall  keep  a  journal  of  its  proceedings,  and  from 
time   to   time,  publish   the   same,  excepting  such   parts  as  may  in 
their   judgment    require   secrecy;    and   the   yeas   and   nays   of   the 
members  of  either  House,  on  any  question,  shall,  at  the  desire  of 
one-fifth  of  those  present,  be  entered  on  the  journal. 

4.  Neither  House,  during  the  session  of  Congress,  shall,  without 
the  consent  of  the  other,  adjourn  for  more  than  three  days,  nor  to 
any  other  place  than  that  in  which  the  two  Houses  shall  be  sitting. 


XXil  APPENDIX. 


SECTION  6. 

1.  The  Senators   and   Representatives   shall    receive  a  compensa 
tion  for  their  services,  to  be  ascertained   by  law,  and   paid  out  of 
the  Treasury  of  the  United  States.     They  shall  in  all  cases,  except 
treason,  felony,  and  breach  of  the  peace,  be   privileged  from  arrest 
during  their  attendance    at   the  session  of  their  respective  Houses, 
and  in  going  to  and  returning  from  the  same ;  and  for  any  speech 
or  debate   in   either   House,  they  shall    not   be   questioned   in   any 
other  place. 

2.  No  Senator  or  Representative  shall,  during  the  time  for  which 
he  was  elected,  be  appointed  to  any  civil  office  under  the  authority 
of  the  United  States  which  shall  have  been  created,  or  the  emolu 
ments  whereof  shall  have  been  increased,  during  such   time ;    and 
no   person    holding   any  office    under   the  United   States  shall  be  a 
member  of  either  House  during  his  continuance  in  office. 

SECTION  7. 

1.  All  bills  for  raising  revenue  shall  originate  in  the  House  of 
Representatives;  but  the  Senate  may  propose  or  concur  with  amend 
ments,  as  on  other  bills. 

2.  Every  bill  which  shall  have  passed  the  House  of  Representa 
tives  and  the  Senate,  shall,  before  it    become    a   law,  be   presented 
to  the  President  of  the  United  States:    if  he  approve  he  shall  sign 
it,  but  if  not  he  shall  return   it  with  his  objections  to  that  House 
in  which  it  shall  have  originated,  who  shall  enter  the  objections  at 
large  in  their  journal,  and  proceed  to  reconsider  it.     If,  after  such 
reconsideration,  two-thirds   of   that   House   shall   agree  to  pass  the 
bill,   it  shall   be   sent,  together  with   the   objections,    to   the   other 
House,   by    which    it    shall    likewise    be    reconsidered,   and    if   ap 
proved   by  two-thirds  of  that   House,  it   shall  become  a  law.     But 
in   all   such   cases   the  votes  of  both   Houses   shall   be   determined 
by  yeas  and   nays,    and   the  names  of   the  persons  voting   for  and 
against  the  bill  shall  be  entered  on  the  journal  of  each  House  re 
spectively.     If  any  bill    shall    not    be    returned   by    the    President 
within  ten  days  (Sundays  excepted)  after   it    shall  have  been  pre 
sented   to  him,  the    same  shall    be  a  law,  in  like  manner  as  if  he 
had  signed   it,  unless  the  Congress,  by  their  adjournment,  prevent 
its  return,  in  which  case  it  shall  not  be  a  law. 

3.  Every  order,  resolution,  or  vote,  to  which  the  concurrence  of 
the  Senate  and  House  of  Representatives  may  be  necessary  (except 
on  a  question  of  adjournment)  shall  be  presented  to  the  President 
of  the  United  States,  and  before  the  same  shall  take  effect  shall  be 


CONSTITUTION  OF  THE  UNITED  STATES.          xxiii 

approved  by  him,  or,  being  disapproved  by  him,  shall  be  re-passed 
by  two-thirds  of  the  Senate  and  House  of  Representatives,  accord 
ing  to  the  rules  and  limitations  prescribed  in  the  case  of  a  bill. 

SECTION  8. 

The  Congress  shall  have  power  — 

1.  To  lay  and  collect  taxes,  duties,  imposts,  and  excises,  to  pay 
the  debts  and  provide  for  the  common  defense  and  general  welfare 
of  the  United  States;    but  all  duties,  imposts,  and  excises  shall  be 
uniform  throughout  the  United  States; 

2.  To  borrow  money  on  the  credit  of  the  United  States; 

3.  To  regulate   commerce  with    foreign   nations,  arid   among   the 
several  States,  and  with  the  Indian  tribes; 

4.  To  establish  a  uniform  rule  of  naturalization,  and  uniform  laws 
on  the  subject  of  bankruptcies  throughout  the  United  States; 

5.  To  coin  money,  regulate  the  value  thereof  and  of  foreign  coin, 
and  fix  the  standard  of  weights  ard  measures ; 

6.  To  provide  for  the  punishment  of  counterfeiting  the  securities 
and  current  coin  of  the  United  States; 

7.  To  establish  post-offices  and  post-roads; 

8.  To  promote  the  progress  of  science  and  useful  arts,  by  securing 
for  limited  times,  to  authors  and  inventors  the  exclusive  right  to  their 
respective  writings  and  discoveries; 

9.  To  constitute  tribunals  inferior  to  the  Supreme  Court ; 

10.  To  define  and  punish  piracies  and  felonies  committed  on  the 
high  seas,  and  offenses  against  the  law  of  nations ; 

11.  To  declare  war,  grant  letters  of  marque  and  reprisal,  and  make 
rules  concerning  captures  on  land  and  water; 

12.  To  raise  and  support  armies,  but  no  appropriation  of  money  to 
that  use  shall  be  for  a  longer  term  than  two  years; 

13.  To  provide  and  maintain  a  navy; 

14.  To  make  rules  for  the  government  and  regulation  of  the  land 
and  naval  forces ; 

15.  To  provide  for  calling  forth  the  militia  to  execute  the  laws  of 
the  Union,  suppress  insurrections,  and  repel  invasions; 

16.  To  provide  for  organizing,  arming,  and  disciplining  the  militia, 
and  for  governing  such  part  of  them  as  may  be  employed  in  the  service 
of  the  United  States,  reserving  to  the  States  respectively  the  appoint 
ment  of  the  officers,  and  the  authority  of  training  the  militia  accord 
ing  to  the  discipline  prescribed  by  Congress; 

17.  To  exercise  exclusive  legislation  in  all  cases  whatsoever,  over 
such  district  (not  exceeding  ten  miles  square)  as  may,  by  cession  of 
particular  States  and  the  acceptance  of  Congress,  become  the  seat  of 


XXIV  APPENDIX. 

the  Government  of  the  United  States,  and  to  exercise  like  authority 
over  all  places  purchased  by  the  consent  of  the  legislature  of  the 
State  in  which  the  same  shall  be,  for  the  erection  of  forts,  magazines, 
arsenals,  dock-yards,  and  other  needful  buildings;  and, 

18.  To  make  all  laws  which  shall  be  necessary  and  proper  for  car 
rying  into  execution  the  foregoing  powers,  and  all  other  powers  vested 
by  this  Constitution  in  the  Government  of  the  United  States,  or  in 
any  department  or  officer  thereof. 

SECTION  9. 

1.  The  migration  or  importation  of  such  persons  as  any  of  the 
States  now  existing  shall  think  proper  to  admit,  shall  not  be  pro 
hibited  by  the  Congress  prior  to  the  year  one  thousand  eight  hundred 
and  eight,  but  a  tax  or  duty  may  be  imposed  on  such  importation, 
not  exceeding  ten  dollars  for  each  person. 

2.  The  privilege  of  the  writ  of  habeas  corpus  shall  not  be  suspended, 
unless  when  in  cases  of  rebellion  or  invasion  the  public  safety  may 
require  it. 

3.  No  bill  of  attainder  or  ex  post  facto  law  shall  be  passed. 

4.  No  capitation  or  other  direct  tax  shall  be  laid,  unless  in  propor 
tion  to  the  census  or  enumeration  hereinbefore  directed  to  be  taken. 

5.  No  tax  or  duty  shall  be  laid  on  articles  exported  from  any  State. 
No  preference  shall  be  given  by  any  regulation  of  commerce  or  rev 
enue  to  the  ports  of  one  State  over  those  of  another;  nor  shall  vessels 
bound  to  or  from  one  State  be  obliged  to  enter,  clear,  or  pay  duties 
in  another. 

6.  No  money  shall  be  drawn  from  the  treasury  but  in  consequence 
of  appropriations  made  by  law;  and  a  regular  statement  and  account 
of  the  receipts  and  expenditures  of  all  public  money  shall  be  pub 
lished  from  time  to  time. 

7.  No  title  of  nobility  shall  be  granted  by  the  United  States ;   and 
no  person  holding  any  office  of  profit  or  trust  under  them,  shall,  with 
out  the  consent  of  the  Congress,  accept  of  any  present,  emolument, 
office,  or  title,  of  any  kind  whatever,  from  any  king,  prince,  or  foreign 
state. 

SECTION  10. 

1.  No  State  shall  enter  into  any  treaty,  alliance,  or  confederation; 
grant  letters  of  marque  and  reprisal ;  coin  money  ;  emit  bills  of  credit ; 
make  any  thing  but  gold  and  silver  coin  a  tender  in  payment  of  debts ; 
pass  any  bill  of  attainder,  ex  pott  facto  law,  or  law  impairing  the  obli 
gation  of  contracts,  or  grant  any  title  of  nobility. 

2.  No  Slate  shall,  without  the  consent  of  the  Congress,  lay  any  im- 


CONSTITUTION  OF  THE  UNITED  STATES.  XXV 

posts  or  duties  on  imports  or  exports  except  what  may  be  absolutely 
necessary  for  executing  its  inspection  laws:  and  the  net  produce  of 
all  duties  and  imposts,  laid  by  any  State  on  imports  or  exports,  shall  be 
for  the  use  of  the  treasury  of  the  United  States;  and  all  such  laws  shall 
be  subject  to  the  revision  and  control  of  the  Congress.  No  State  shall, 
without  the  consent  of  Congress,  lay  any  duty  of  tonnage,  keep  troops  or 
ships  of  war  in  time  of  peace,  enter  into  any  agreement  or  compact  with 
another  State  or  with  a  foreign  power,  or  engage  in  war,  unless  actu 
ally  invaded,  or  in  such  imminent  danger  as  will  not  admit  of  delay. 

AETICLE  II.— SECTION  1. 

1.  The  Executive  power  shall  be  vested  in  a  President  of  the  United 
States  of  America.     He  shall  hold  his  office  during  the  term  of  four 
years,  and,  together  with  the  Vice-President,  chosen  for  the  same  term, 
be  elected  as  follows  : 

2.  Each  State  shall  appoint   in  such   manner  as  the  legislature 
thereof  may  direct,  a  number  of  Electors  equal  to  the  whole  number 
of  Senators  and  Representatives  to  which  the  State  may  be  entitled  in 
the  Congress  ;  but  no  Senator  or  Representative,  or  person  holding  an 
office  of  trust  or  profit  under  the  United  States,  shall  be  appointed  an 
Elector. 

Clause  3  has  been  superseded  by  the  12th  Article  of  Amendments;  for  text 
see  page  1 66. 

4.  The  Congress  may  determine  the  time  of  choosing  the  Electors, 
and  the  day  on  which  they  shall  give  their  votes;  which  day  shall 
be  the  same  throughout  the  United  States. 

5.  No  person,   except  a  natural-born  citizen,  or  a  citizen  of  the 
United  States  at  the  time  of  the  adoption  of  this  Constitution,  shall 
be  eligible  to  the  office  of  President ;  neither  shall  any  person  be 
eligible  to  that  office  who  shall  not  have  attained  to  the  age  of  thirty- 
five  years,  and  been   fourteen  years  a  resident  within  the  United 
States. 

6.  In  case  of  the  removal  of  the  President  from  office,  or  of  his 
death,  resignation,  or  inability  to  discharge  the  powers  and  duties  of 
said  office,  the  same  shall  devolve  on  the  Vice-President ;  and  the 
Congress  may  by  law  provide  for  the  case  of  removal,  death,  resigna 
tion,  or  inability,  both  of  the  President  and  Vice-President,  declaring 
what  officer  shall  then  act  as  President,  and  such  officer  shall  act  ac 
cordingly,  until  the  disability  be  removed,  or  a  President  shall  be 
elected. 

7.  The  President  shall,  at  stated  times,  receive  for  his  services  a 
compensation,  which  shall  neither  be  increased  nor  diminished  during 
the  period  for  which  he  shall  have  been  elected,  and  he  shall  not 


XXVI  APPENDIX. 

receive  within  that  period  any  other  emolument  from  the  United 
States,  or  any  of  them. 

8.  Before  he  enter  on  the  execution  of  his  office,  he  shall  take  the 
following  oath  or  affirmation  : 

"I  do  solemnly  swear  (or  affirm)  that  I  will  faithfully  execute 
the  office  of  President  of  the  United  States,  and  will,  to  the  best  of 
my  ability,  preserve,  protect,  and  defend  the  Constitution  of  the 
United  States." 

SECTION  2. 

1.  The  President  shall  be  Commander-in-chief  of  the  army  and 
navy  of  the  United  States,  and  of  the  militia  of  the  several  States 
when  called  .into  the  actual  service  of  the  United  States;  he  may  re 
quire  the  opinion,  in  writing,  of  the  principal  officer  in  each  of  the 
executive  departments,  upon  any  subject  relating  to  the  duties  of 
their  respective  offices,  and  he  shall  have  power  to  grant  reprieves 
and  pardons  for  offenses  against  the  United  States,  except  in  cases  of 
impeachment. 

2.  lie  shall  have  power,  by  and  with  the  advice  and  consent  of  the 
Senate,  to  make  treaties,  provided  two-thirds  of  the  Senators  present 
concur;  and  he  shall  nominate,  and  by  and  with  the  advice  and  con 
sent  of  the  Senate,  shall  appoint  Ambassadors,  other  public  Ministers 
and  Consuls,  Judges  of  the  Supreme  Court,  and  all  other  officers  of 
the  United  States,  whose  appointments  are  not  herein  otherwise  pro 
vided  for,  and  which  shall  be  established  by  law ;  but  the  Congress 
may  by  law  vest  the  appointment  of  such  inferior  officers  as  they 
think  proper,  in  the  President  alone,  in  the  Courts  of  law,  or  in  the 
heads  of  Departments. 

3.  The  President  shall  have  power  to  fill  up  all  vacancies  that  may 
happen  during  the  recess  of  the  Senate,  by  granting  commissions 
which  shall  expire  at  the  end  of  their  next  session. 

SECTION  3. 

He  shall  from  time  to  time,  give  to  the  Congress  information 
of  the  state  of  the  Union,  and  recommend  to  their  consideration  such 
measures  as  he  shall  judge  necessary  and  expedient ;  he  may,  on  ex 
traordinary  occasions,  convene  both  Houses,  or  either  of  them,  and 
in  case  of  disagreement  between  them  with  respect  to  the  time  of  ad 
journment,  he  may  adjourn  them  to  such  time  as  he  shall  think 
proper  ;  he  shall  receive  ambassadors  and  other  public  ministers  ;  he 
shall  take  care  that  the  laws  be  faithfully  executed,  and  shall  com 
mission  all  the  officers  of  the  United  States. 


CONSTITUTION  OF  THE  UNITED  STATES.          XXvii 

SECTION  4. 

The  President,  Vice-President,  and  all  civil  officers  of  the  United 
States,  shall  be  removed  from  office  on  impeachment  for,  and  convic 
tion  of,  treason,  bribery,  or  other  high  crimes  and  misdemeanors. 

ARTICLE  III— SECTION  1. 

The  judicial  power  of  the  United  States  shall  be  vested  in  one 
Supreme  Court,  and  in  such  inferior  Courts  as  the  Congress  may 
from  time  to  time  ordain  and  establish.  The  Judges,  both  of  the 
Supreme  and  inferior  Courts,  shall  hold  their  offices  during  good  be 
havior,  and  shall,  at  stated  times,  receive  for  their  services  a  com 
pensation  which  shall  not  be  diminished  during  their  continuance 
in  office. 

SECTION  2. 

1.  The  judicial  power  shall  extend  to  all  cases  in  law  and  equity 
arising  under  this  Constitution,  the  laws  of  the  United  States,  and 
treaties  made,  or  which  shall  be  made,  under  their  authority;  to  all 
cases   affecting    ambassadors,    other   public  ministers,  and   consuls  ; 
to  all  cases  of  admiralty  and  maritime  jurisdiction  ;  to  controversies 
to  which  the  United  States  shall  be  a  party  ;  to  controversies  between 
two  or  more  States;  between  a  State  and  citizens  of  another  State; 
between  citizens  of  different  States ;  between  citizens  of  the  same  State 
claiming  lands  under  grants  of  different  States;  and  between  a  State, 
or  the  citizens  thereof,  and  foreign  States,  citizens,  or  subjects. 

2.  In  all  cases  affecting  ambassadors,  other  public  ministers,  and 
consuls,  and  those  in  which  a  State  shall  be  a  party,  the  Supreme 
Court  shall  have  original  jurisdiction.     In  all  the  other  cases  before 
mentioned,  the  Supreme  Court  shall  have  appellate  jurisdiction,  both 
as  to  law  and  fact,  with  such  exceptions  and  under  such  regulations 
as  the  Congress  shall  make. 

3.  The  trial  of  all  crimes,  except  in  cases  of  impeachment,  shall  be 
by  jury ;  and  su^}i  trial  shall  be  held  in  the  State  where  the  said 
crimes  shall  have  been  committed ;  but  when  not  committed  within 
any  State,  the  trial  shall  be  at  such  place  or  places  as  the  Congress 
may  by  law  have  directed. 

SECTION  3. 

1.  Treason  against  the  United  States  shall  consist  only  in  levying  war 
against  them,  or  in  adhering  to  their  enemies,  giving  them  aid  and 
comfort.  No  person  shall  be  convicted  of  treason  unless  on  the  tes 
timony  of  two  witnesses  to  the  same  overt  act,  or  on  confession 
in  open  Court. 


XXV111  APPENDIX. 

2.  The  Congress  shall  have  power  to  declare  the  punishment 
of  treason,  but  no  attainder  of  treason  shall  work  corruption  of  blood, 
or  forfeiture,  except  during  the  life  of  the  person  attained. 

AKTICLE  IV— SECTION  1. 

Full  faith  and  credit  shall  be  given  in  each  State  to  the  public 
acts,  records,  and  judicial  proceedings  of  every  other  State.  And  the 
Congress  may,  by  general  laws,  prescribe  the  manner  in  which 
such  acts,  records,  and  proceedings  shall  be  proved,  and  the  effect 

thereof. 

SECTION  2. 

1.  The  citizens  of  each  State  shall  be  entitled  to  all  privileges  and 
immunities  of  citizens  in  the  several  States. 

2.  A  person  charged  in  any  State  with  treason,  felony,  or  other 
crime,  who  shall  flee  from  justice,  and  be  found  in  another  State,  shall, 
on  demand  of  the  executive  authority  of  the  State  from  which  he  fled, 
be  delivered  up,  to  be  removed  to  the  State  having  jurisdiction  of  the 
crime. 

3.  No  person  held  to  service  or  labor  in  one  State,  under  the  laws 
thereof,  escaping  into  another,  shall,  in  consequence  of  any  law  or 
regulation   therein,  be  discharged   from  such  service  or  labor,  but 
shall  be  delivered  up  on  claim  of  the  party  to  whom  such  service  or 
labor  may  be  due. 

SECTION  3. 

1.  New  States  may  be  admitted  by  the  Congress  into  this  Union; 
but  no  new  State  shall  be  formed  or  erected  within  the  jurisdiction 
of  any  other  State;  nor  any  State  be  formed  by  the  junction  of  two  or 
more  States,  or  parts  of  States,  without  the  consent  of  the  legislatures 
of  the  States  concerned  as  well  as  of  the  Congress. 

2.  The  Congress  shall  have  power  to  dispose  of  and  make  all  need 
ful  rules  and  regulations  respecting  the  territory  or  other  property 
belonging  to  the  United  States ;  and  nothing  in  this   Constitution 
shall  be  so  construed  as  to  prejudice  any  claims  of  the  United  States, 
or  of  any  particular  State. 

SECTION  4. 

The  United  States  shall  guaranty  to  every  State  in  this  Union 
a  republican  form  of  government,  and  shall  protect  each  of  them 
against  invasion;  and,  on  application  of  the  legislature,  or  of  the  Ex 
ecutive  (when  the  legislature  can  not  be  convened)  against  domestic 

violence. 

AKTICLE  V. 

The  Congress,  whenever  two-thirds  of  both  Houses  shall  deem  it 
necessary,  shall  propose  Amendments  to  this  Constitution,  or,  on  the 


CONSTITUTION  OF  THE  UNITED  STATES. 

application  of  the  legislatures  of  two-thirds  of  the  several  States,  shall 
call  a  convention  for  proposing  Amendments,  which,  in  either  case, 
shall  be  valid  to  all  intents  and  purposes  as  part  of  this  Constitution, 
when  ratified  by  the  legislatures  of  three-fourths  of  the  several  States, 
or  by  conventions  in  three-fourths  thereof,  as  the  one  or  the  other 
mode  of  ratification  may  be  proposed  by  the  Congress :  provided, 
that  no  Amendment  which  may  be  made  prior  to  the  year  one  thous 
and  eight  hundred  and  eight  shall  in  any  manner  affect  the  first  and 
fourth  clauses  in  the  ninth  section  of  the  first  article ;  and  that  no 
State,  without  its  consent,  shall  be  deprived  of  its  equal  suffrage  in 
the  Senate 

AETICLE  VI. 

1.  All^debts  contracted  and  engagements  entered  into,  before  the 
adoption  of  this  Constitution,  shall  be  as  valid  against  the  United 
States  under  this  Constitution  as  under  the  Confederation. 

2.  This  Constitution,  and  the  laws  of  the  United  States  which  shall 
be  made  in  pursuance  thereof,  and  all  treaties  made,  or  which  shall 
be   made,  under  the   authority  of  the  United  States,  shall   be  the 
supreme  law   of  the  land  ;   and  the  judges  in  every  State  shall  be 
bound  thereby,  any  thing  in  the  constitution  or  laws  of  any  State  to 
the  contrary  notwithstanding. 

3.  The  Senators  and   Representatives  before  mentioned,  and  the 
members  of  the  several  State  legislatures,  and  all  executive  and  judi 
cial  officers,  both  of  the  United  States  and  of  the  several  States,  shall 
be  bound  by  oath,  or  affirmation,  to  support  this  Constitution  ;  but  no 
religious  test  shall  ever  be  required  as  a  qualification  to  any  office  or 
public  trust  under  the  United  States. 

ARTICLE  VII. 

The  ratification  of  the  Conventions  of  nine  States  shall  be  suffi 
cient  for  the  establishment  of  this  Constitution  between  the  States  so 
ratifying  the  same. 


AMENDMENTS   TO  THE  CONSTITUTION. 

ARTICLE  I. 

Congress  shall  make  no  law  respecting  an  establishment  of  religion, 
or  prohibiting  the  free  exercise  thereof;  or  abridging  the  freedom  of 
speech  or  of  the  press  ;  or  the  right  of  the  people  peaceably  to  assem 
ble,  and  to  petition  the  government  for  a  redress  of  grievances. 


XXX  APPENDIX. 

ARTICLE  II. 

A  well-regulated  militia  being  necessary  to  the  security  of  a  free 
state,  the  right  of  the  people  to  keep  and  bear  arms  shall  not  be  in 
fringed. 

ARTICLE   III. 

No  soldier  shall,  in  time  of  peace,  be  quartered  in  any  house  with 
out  the  consent  of  the  owner,  nor  in  time  of  war,  but  in  a  manner 
to  be  prescribed  by  law. 

ARTICLE  IV. 

The  right  of  the  people  to  be  secure  in  their  persons,  houses,  papers, 
and  effects,  against  unreasonable  searches,  and  seizures,  shall  not  be 
violated,  and  no  warrants  shall  issue,  but  upon  probable  cause,  sup 
ported  by  oath  or  affirmation,  and  particularly  describing  the  place 
to  be  searched,  and  the  persons  or  things  to  be  seized. 

ARTICLE  V. 

No  person  shall  be  held  to  answer  for  a  capital  or  otherwise  in 
famous  crime,  unless  on  a  presentment  or  indictment  of  a  grand  jury, 
except  in  cases  arising  in  the  land  or  naval  forces,  or  in  the  militia 
when  in  actual  service  in  time  of  war  or  public  danger ;  nor  shall  any 
person  be  subject  for  the  same  offense  to  be  twice  put  in  jeopardy  of 
life  or  limb ;  nor  shall  be  compelled  in  any  criminal  case,  to  be  a 
witness  against  himself;  nor  be  deprived  of  life,  liberty,  or  property, 
without  due  process  of  law ;  nor  shall  private  property  be  taken  for 
public  use  without  just  compensation. 

ARTICLE   VI. 

In  all  criminal  prosecutions,  the  accused  shall  enjoy  the  right  to  a 
speedy  and  public  trial,  by  an  impartial  jury  of  the  State  and  district 
wherein  the  crime  shall  have  been  committed,  which  district  shall 
have  been  previously  ascertained  by  law,  and  to  be  informed  of  the 
nature  and  cause  of  the  accusation  ;  to  be  confronted  with  the  wit 
nesses  against  him ;  to  have  compulsory  process  for  obtaining  wit 
nesses  in  his  favor,  and  to  have  the  assistance  of  counsel  for  his  de 
fense. 

ARTICLE  VII. 

In  suits  at  common  law  where  the  value  in  controversy  shall 
exceed  twenty  dollars,  the  right  of  trial  by  jury  shall  be  preserved, 
and  no  fact  tried  by  a  jury  shall  be  otherwise  re-examined  in  any 
Court  of  the  United  States,  than  according  to  the  rules  of  the  common, 
law. 


CONSTITUTION  OF  THE  UNITED  STATES.  XXXI 

ARTICLE  VIII. 

Excessive  bail  shall  not  be  required,  nor  excessive  fines  imposed, 
nor  cruel  and  unusual  punishments  inflicted. 

AETICLE   IX. 

The  enumeration  in  the  Constitution  of  certain  rights  shall  not  be 
construed  to  deny  or  disparage  others  retained  by  the  people. 

AETICLE  X. 

The  powers  not  delegated  to  the  United  States  by  the  Constitution, 
nor  prohibited  by  it  to  the  States,  are  reserved  to  the  States  respect 
ively,  or  to  the  people. 

ARTICLE  XI. 

The  judicial  power  of  the  United  States  shall  not  be  construed  to 
extend  to  any  suit  in  law  or  equity  commenced  or  prosecuted  against 
one  of  the  United  States  by  citizens  of  another  State,  or  by  citizens  or 
subjects  of  any  foreign  State. 

ARTICLE  XII. 

1.  The  Electors  shall  meet  in  their  respective  States,  and  vote  by 
ballot  for  President  and  Vice-President,  one  of  whom,  at  least,  shall 
not  be  an  inhabitant  of  the  same  State  with  themselves ;  they  shall 
name  in  their  ballots  the  person  voted  for  as  President,  and  in  dis 
tinct  ballots  the  person  voted  for  as  Vice-President,  and  they  shall 
make  distinct  lists  of  all  persons  voted  for  as  President,  and  of  all 
persons  voted  for  as  Vice-President,  and  of  the  number  of  votes  for 
each,  which  lists  they  shall  sign  and  certify,  and  transmit  sealed  to 
the  seat  of  the  government  of  the  United  States,  directed  to  the  Pres 
ident  of  the  Senate.  The  President  of  the  Senate  shall,  in  the  pres 
ence  of  the  Senate  and  House  of  Representatives,  open  all  the  certifi 
cates,  and  the  votes  shall  then  be  counted ;  the  person  having  the 
greatest  number  of  votes  for  President  shall  be  the  President,  if  such 
number  be  a  majority  of  the  whole  number  of  Electors  appointed  ; 
and  if  no  person  have  such  majority,  then  from  the  persons  having 
the  highest  numbers,  not  exceeding  three,  on  the  list  of  those  voted 
for  as  President,  the  House  of  Representatives  shall  choose  imme 
diately,  by  ballot,  the  President.  But  in  choosing  the  President,  the 
votes  shall  be  taken  by  States,  the  representation  from  each  State 
having  one  vote  ;  a  quorum  for  this  purpose  shall  consist  of  a  mem 
ber  or  members  from  two-thirds  of  the  States,  and  a  majority  of  all 
the  States  shall  be  necessary  to  a  choice.  And  if  the  House  of  Rep 
resentatives  shall  not  choose  a  President,  whenever  the  right  of  choice 
C.  G.  34. 


XXX11  APPENDIX. 

shall  devolve  upon  them,  before  the  fourth  day  of  March  next  fol 
lowing,  then  the  Vice-President  shall  act  as  President,  as  in  the  case 
of  the  death  or  other  constitutional  disability  of  the  President, 
The  person  having  the  greatest  number  of  votes  as  Vice-President 
shall  be  the  Vice-President,  if  such  number  be  a  majority  of  the 
whole  number  of  Electors  appointed,  and  if  no  person  have  a  ma 
jority,  then  from  the  two  highest  numbers  on  the  list  the  Senate 
shall  choose  the  Vice-President ;  a  quorum  for  the  purpose  shall 
consist  of  two-thirds  of  the  whole  number  of  Senators,  and  a  major 
ity  of  the  whole  number  shall  be  necessary  to  a  choice.  But  no 
person  constitutionally  ineligible  to  the  office  of  President  shall  be 
eligible  to  that  of  Vice-President  of  the  United  States. 

ARTICLE  XIII. 

1.  Neither  Slavery  nor  involuntary  servitude,  except  as  a  punish 
ment  for  crime,  whereof  the  party  shall  have  been  duly  convicted, 
shall  exist  within  the  United  States,  or  any  place  subject  to  their 
jurisdiction. 

2.  Congress  shall  have  power  to  enforce  this  article  by  appropriate 
legislation. 

ARTICLE    XIV. 

1.  All  persons  born  or  naturalized  in  the  United  States,  and  sub 
ject  to  the  jurisdiction  thereof,  are  citizens  of  the  United  States  and 
of  the  State  wherein  they  reside.     No  State  shall  make  or  enforce 
any  law  which  shall  abridge  the  privileges  or  immunities  of  citizens 
of  the  United  States ;  nor  shall  any  State  deprive  any  person  of  life, 
liberty,  or  property,  without  due  process  of  law,  nor  deny  to  any  per 
son  within  its  jurisdiction  the  equal  protection  of  the  laws. 

2.  Representatives  shall  be  apportioned  among  the  several  States 
according  to  their  respective  numbers,  counting  the  whole  number 
of  persons  in  each  State,  excluding  Indians  not  taxed.     But  when 
the  right  to  vote  at  any  election  for  the  choice  of  electors  for  Presi 
dent   and  Vice-President  of  the    United  States,  Representatives  in 
Congress,  the  executive  and  judicial  officers  of  a  State,  or  the  mem 
bers  of  the  legislature  thereof,  is  denied  to  any  of  the  male  inhabi 
tants  of  such  State,  being  twenty -one  years  of  age,  and  citizens  of  the 
United  States,  or  in  any  way  abridged,  except  for  participation  in  re 
bellion  or  other  crime,  the  basis  of  representation  therein  shall  be 
reduced  in  the  proportion  which  the  number  of  such  male  citizens 
shall  bear  to  the  whole  number  of  male  citizens  twenty-one  years  of 
age  in  such  State. 

3.  No  person  shall  be  a  Senator  or  Representative  in  Congress,  or 
elector  of  President  and  Vice-President.  or  hold  any  office,  civil  or 


CONSTITUTION  OF  THE  UNITED  STATES.      XXXlil 

military,  under  the  United  States,  or  under  any  State,  who,  having 
previously  taken  an  oath,  as  a  member  of  Congress,  or  as  an  officer 
of  the  United  States,  or  as  a  member  of  any  State  legislature,  or  as  an 
executive  or  judicial  officer  of  any  State,  to  support  the  Constitution 
of  the  United  States,  shall  have  engaged  in  insurrection  or  rebellion 
against  the  same,  or  given  aid  or  comfort  to  the  enemies  thereof. 
But  Congress  may^  by  a  vote  of  two-thirds  of  each  House,  remove 
such  disability. 

4.  The  validity  of  the  public  debt  of  the  United  States,  authorized 
by  law,  including  debts  incurred  for  payment  of  pensions  and  bounties 
for  services  in  suppressing    insurrection   or   rebellion,  shall   not  be 
-questioned.    But  neither  the  United  States  nor  any  State  shall  assume 
or  pay  any  debt  or  obligation    incurred  in   aid  of    insurrection  or 
rebellion  against  the  United   States,  or   any   claim   for  the  loss  or 
emancipation  of  any  slave;  but  all  such  debts,  obligations,  and  claims 
shall  be  held  illegal  and  void. 

5.  The  Congress  shall  have  power  to  enforce,  by  appropriate  legis 
lation,  the  provisions  of  this  article. 

AETICLE  XV. 

1.  The  right  of  citizens  of  the  United  States  to  vote  shall  not  be 
denied  or  abridged  by  the  United  States,  or  by  any  State,  on  account 
of  race,  color,  or  previous  condition  of  servitude. 

2.  The  Congress  shall  have  power  to  enforce  this  article  by  appro 
priate  legislation. 


I^DEX. 


Academy,  military,  338;  naval,  341. 

Adams.  John,  Vice-President,  314  ;  Presi 
dent,  319. 

Adams,  John  Quincy,  President,  320. 

Agriculture,  department  of,  348. 

Alabama,  secession  of,  242 :  reconstruction 
of,  245 ;  admission  of,  299. 

Alaska,  313. 

Alloy  of  gold  and  silver  coins,  102. 

Ambassadors,  etc..  324. 

Amendments  to  the  Constitution,  clause 
regarding,  247;  nineteen  proposed, 
fifteen  ratified,  248,263;  three  limita 
tions,  249;  difficulties  in  the  way  of, 
250;  approval  of  President  not  nec 
essary,  250;  publication  of,  252  ;  can 
a  State  withdraw  her  ratification  of, 
252;  dates  of,  2">4 ;  first,  264  ;  second, 
third,  26.') ;  fourth,  fifth,  sixth,  2M ; 
seventh,  eighth,  267;  eleventh, 
twelfth,  thirteenth,  271  ;  fourteenth, 
273;  fifteenth,  280. 

Amnesty,  action  of  Congress  as  to,  178; 
proclamations  of,  278. 

Annapolis,  Convention  of  1786,  40;  recom 
mended  a  convention  to  revise  Arti- 
cles  of  Confederation,  41. 

Appellate  jurisdiction  of  U.  S.  Courts,  206, 
207  ;  two  views  of,  208. 

Appointments,  by  the  President,  179, 187  ; 
power  of  Congress  over,  179;  by 
heads  of  departments,  179. 

Apportionment^!'  Representatives,  50-55. 

Appropriations,  152. 

Area  of  the  United  States,  313. 

Arizona  Territory,  306,  313. 

Arkansas,  secession  of, 212;  action  of,  244  ; 
reconstruction  of,  245;  admission 
of,  301. 

Armies,  power  of  Congress  as  to,  128. 

Army  regular,  129;  list  of  officers  in,  131  ; 
rules  for  the  government  of,  131,  132; 
pay  of  officers,  33s. 

Articles  of  Confederation, adopted  by  Con 
gress  1777,  ratified  by  the  States 
March  1,  1781,  36 ;  failure  of.  36-39; 
provisions  as  to  States,  154-159; 
amendment  of,  2*8,259;  Appendix,  v. 

Assessor  of  Internal  Revenue,  334. 

Attorney-General,  duties  of,  199:  office  of 
established,  352 ;  salary  of,  353;  list 
of,  353;  assistants,  353,  355. 

Auditors  of  the  treasury,  330,  331. 


Bank  currency,  10S-110. 

Bankrupt,  allowance  to,  98  ;  discharge  of, 
98;  influence  of  creditors,  98;  moral 
obligations  of,  99. 

Bankruptcies,  91  ;  limited  to  traders  orig 
inally,  96;  power  formerly  in  the 
States,  97;  three  acts  passed,  97; 
voluntary  and  involuntary,  97. 

Bill  of  attainder,  149;  case  ex  parte  Gar 
land,  150  ;  forbidden  to  States,  P>4. 

Bill  of  rights,  not  in  original  constitution, 
264;  in  first  eight  amendments,  264 ; 
the  constitution  a,  26S. 

Bills,  how  passed  in  Congress,  77. 

Bills  of  credit,  treasury  notes,  lOii ;  States 
can  not  emit,  154  ;  defined,  156  ;  emit 
ted  by  Congress,  157. 

Blount,\Vm.,  expelled,  70;  Impeached,  192. 

Bonds  of  U.  S.,86;  not  taxable,  87. 


Breckenridge,  J.  C.,  Vice-President, 315. 

Bright,  Jesse  D.,expclled  from  Senate,  70. 

British  Parliament,  cabinet  officers  mem 
bers  of,  76;  power  of,  210;  may 
amend  constitution,  249. 

Buchanan,  James,  President,  321. 

Bureaus,  in  the  departments,  322  ;  names 
of  in  Treasury  Department,  329. 

Burr,  Aaron,  tried  for  treason,  222  ;  Vice- 
President,  315. 


Cabinet  Officers,  321  ;  salaries  of,  322,359. 

Cadet-midshipmen  and  engineers,  342. 

Calhoun,  John  C.,  Vice-President,  315. 

California,  admission  of,  306. 

Capitation  tax,  clause  as  to,  150. 

Carriers,  for  free  delivery  of  letters,  117. 

Census,  50;  Superintendent  of,  348. 

Cession  of  territory  by  various  States,  233. 

Charge  d'Aftaires,  326. 

Charter   governments  (colonial),  25-27. 

Chase,  Samuel,  impeached,  193,  194. 

Circuit  Courts  established,  1%. 

Citizens,  defined,  91,  226,  227,  273;  Judge 
Taney  in  Dred  Scott  case,  22s;  not 
necessarily  voters,  276 ;  right  to  vote, 
280  ;  free  negroes  citizens,  in  1781,  228. 

Citizenship,  privileges  of,  226,  227. 

Civil  Uights  Bill,  227,  274. 

Civil  Service  Heform.  187. 

Clerk  of  House  of  Representatives,  55,  56. 

Clerks,  in  departments,  355. 

Clinton,  George,  Vice- President,  315. 

Coast  survey,  .531 ;  superintendents,  ,335. 

Coinage,  loo;  an  attribute  of  sovereignty, 
100;  international,  110. 

Coining  of  money  forbidden  to  States,  154. 

Coins,  101;    of  1873.  103;    foreign,  105. 

Colfax,  Schuyler,  Vice-President,  315. 

Collector,  of  Internal  Revenue,  334;  of 
Customs.  335. 

Colonies,  the  thirteen.  24  ;  three  forms  of 
government  of,  25 ;  colonial  Union 
of  1643.  27;  meeting  at  Albany,  27; 
at  New  York,  1765.  28. 

Colorado  Territory,  306  ;  bill  to  admit  as  a 
State,  vetoed,  312. 

Commerce,  power  of  Congress  to  regulate, 
88;  formerly  in  the  States,  88. 

Commissioner,  term  not  now  applied  to 
diplomatic  representatives,  326;  of 
Customs,  332;  of  Internal  Revenue, 
333,  334;  of  Patents.  121,345;  of  Pen 
sions, 345;  of  Land  Office,  34(>;  of  In 
dian  Affairs,  348. 

Committees  of  Congress,  317. 

Committee  of  the  Whole.  318. 

Compensation  of  Congressmen,  72;  none 
in  British  Parliament.  72 ;  various 
rates  in  Congress,  73,  359. 

Comptroller  of  the  Currency,  333. 

Comptroller  of  the  Treasury.  330. 

Confederation,  see  Articles  of. 

Congress,  of  two  Houses,  48  ;  new  one  ev 
ery  two  years,  61  ;  annual  sessions, 
67;  instances  of  three  sessions,  6S, 
189;  each  House  the  judge  as  to  its 
own  members,  69;  a  majority  a  c)uo- 
rum,69;  members  privileged  from 
arrest,  72;  members  can  hold  no 
other  office,  75:  powers  of,  80;  or 
ganization  of  the  first,  292. 

Connecticut,  no  constitution  but  its  colo 
nial  charter  till  1518, 26  ;  ratification 
(xxxiv) 


INDEX. 


XXXV 


of  the  Constitution    by,  288;   first 
constitution,  362. 

Constitution  the,  the  work  of  the  nation, 
It) ;  of  the  nation  distinguished  from 
that  of  the  government,  17;  unwrit- 
ten,  17;  reception  of,  287;  ratification 


of, 288;  Appendix,  xix. 
5iisul-General,327. 


Co 

Consuls,  327. 

Contempt,  power  of  Congress  to  punish,  70. 

Continental  Congress,  First,  .'id;  Second, 
31  ;  action  of,  as  to  the  Constitution, 
286,291. 

Contracts,  States  can  not  pass  laws  im 
pairing  obligation  of,  1.54;  United 
States  as  to,  158;  include  grants, 
case  of  Dartmouth  College,  158. 

Convention  of  1787,  4 1,259, 261 1,  28;$ ;  resolu 
tions  of,  284;  secret  proceedings,  287. 

Copyrights,  Congress  may  issue,  119; 
formerly  issued  by  the  States,  120; 
term  of,  120;  mode  of  obtaining, 
120;  international,  121. 

Corruption  of  blood  in  treason,  222;  mis 
interpreted,  22:5,  2*4. 

Counterfeiting,  112  ;   laws  in  force,  113. 

','ou rt  of  claims,  lits. 

Courts  of  Gt.  Britain,  sphere  of,  209. 

Courts  of  U.S.,  three  classes  of,  196,  198; 
officers  of,  199 ;  not  open  to  citizens 
of  Kist. of  Columbia  and  the  Territo 
ries,  205  ;  powers,  210. 

Currency.  Bureau  of,  333. 

Customs,  Com  mi  sj:>ner  of,  332;  Collector 
of  other  officers,  335. 


Dakota  Territory,  312. 

Dallas,  George  M.,  Vice-President,  315. 

Debt,  public,  of  U.  S.,  87  ;  validity  of,  279. 

Declaration  of  Independence,  App.,  i. 

Delaware,  ratification  of  the  Constitu 
tion,  288  ;  first  Constitution,  362. 

Delegated  powers,  26^-270. 

Democracy  defined,  18. 

Department*,  three,  48;  Legislative,  48- 
If.l.  314;  Executive,  KJl-195,  319 ;  Ju 
dicial,  195-225,  a>6. 

Designs,  patents  for,  123. 

Direct  taxes,  82;  laid  by  U.S.  but  five  times, 
82;  act  of  1861,  83;  clause  as  to,  150. 

Director  of  the  Mint,  334. 

Disabilities,  removal  of,  278. 

District  Courts  established,  196. 

District  of  Columbia,  clause  regarding, 
135;  history  of,  13;\  136;  Congress 
has  power  over,  136,  137;  slavery  in, 
abolished  18(12,  133 ;  territorial  gov 
ernment  in,  139. 

Dollar.  Spanish  milled,  101  :  weight  in  1792, 
in  1853,  101  ;  trade-dollar,  104. 

Duties,  power  of  Congress  to  lay,  81  ;  act 
of  1789,  83;  for  protection  of  manu 
factures,  83;  must  be  uniform,  si  ; 
on  exports  forbidden,  151  ;  forbidden 
to  the  States,  159. 

E 
Education,  office  of,  348;    Commissioner 

of,  348. 

Elections  for  Congressmen.  66. 
Electors  of  President  and  Vice-President, 

164,  171. 

Eleventh  Amendment.  271. 
Emancipation,  proclamations  of,  145,  146. 
Embargo  act  of  1807.  90. 
Envoys     Extraordinary     and     Ministers 

Plenipotentiary,  325. 
Excises,  power  of   Congress  to    lay,  81  ; 

meaning  of.  <4  ;  act  of  1791,  84. 
"Executive  Council  in  certain  States,  367. 
Executive  Department,  161-195;  319. 


Expatriation,  act  of  1868,  93;  treaties  in 

regard  to,  94. 

Expenditures  must  be  published,  152. 
Exports,  value  of,  for  1872,  91  ;  duties  on, 

forbidden,  151,  159. 
Ex  post  facto  law  forbidden,  149  J    case  ex 

parte    Garland,    150;     forbidden    to 

States,  154. 

Expulsion,  70;  cases  in  Senate,  70. 
Extradition,  230. 

F 

Faith  and  credit  to  be  given  to  the  public 
acts,  225:  mode  of  doing  it,  226. 

Fifteenth  Amendment.  2M>,  281. 

Fillmore,  Millard,  Vice-President,  315; 
President,  315,  321. 

Fines,  excessive,  forbidden, 267. 

Florida,  purchase  of,  234;  secession  of, 
242;  reconstruction  of,  245;  admit 
ted  into  the  Union,  302. 

Fourteenth  Amendment,  273,  274. 

Franking  privilege,  117;  abolished,  118. 

Freedom  of  speech  and  press,  264,  265. 

Fugitives  from  justice  given  up,  229;  law 
of  1793,  2:i();  from  another  nation, 
230. 

Fugitives  from  labor  to  be  given  up,  231 ; 
laws  of  1793  and  1850  repealed,  231. 


Gallatin,  Albert,  as  Senator.  62. 

General,  office  of,  129  ;  pay  of,  338. 

Georgia,  but  one  legislative  House  in  1787, 
48;  secession  of,  242;  reconstruction 
of,  245;  ratification  of  the  Constitu 
tion  by,  288  ;  first  constitution,  362. 

Gerry,  Ei bridge,  Vice-President,  315. 

Gold,  used  for  money,  Kid;  reduction  of 
coins  in  1834,  101  ;  a  legal  tender,  102; 
ratio  to  silver,  102 ;  the  only  stand 
ard  in  England,  103;  coinage  of  1873, 
103. 

Government,  civil,  9;  object  of,  10;  not 
merely  repressive,  11;  not  a  neces 
sary  evil,  II  ;  forms  of,  18. 

Government  of  United  States,  20-22. 

Governor,  term  of  office,  367. 

Grand  jury,  215,266. 

Grant.  Ulysses  S.,  President,  321. 

Great  Britain.  Government  of.  18,  19;  im 
peachment  in, 64,  65  ;  cabinet  officers 
in  Parliament,  76 ;  legislative  sphere 
in,  210. 

Guaranty  of  republican  form  of  govern 
ment  to  the  States,  239-247. 

II 

Habeas  Corpus,  the  writ  of,  146-149. 

Hainlin,  Hannibal,  Vice-President,  315. 

Harrison,  William  H.,  President,  320. 

Heads  of  departments,  175,  179. 

Home  Department,  344. 

Humphries,  West   H.,  impeached,  193,  194. 


Idaho  Territory,  312. 

Illinois,  admission  of,  299;  constitution 
of  1870,  provisions  of,  362-367. 

Impeachment,  power  of,  in  House  of 
Representatives,  55;  method  of,  56; 
power  of  trial  in  Senate.  64  ;  if  Presi 
dent  is  tried,  Chief  Justice  presides, 
64;  six  cases,  65;  punishment  for, 
6.1;  officers  liable  to.  191  ;  cases  of, 
192,  193;  two  convictions  for,  194. 

Implied  powers  of  Congress,  139;  views  of 
Madison,  Hamilton.  Marshall.  Story, 
140,  141;  reasons  for,  142,  143;  in 
stances  of,  143,  144. 

Imports,  value  of,  for  1872,  91. 

Imposts,  power  of  Congress  to  lay,  81. 


XXXVI 


INDEX. 


Income  tax,  first  levied  in  1861,  85. 

Independence,  resolution  for  and  declara 
tion  of,  34  ;  Declaration  of,  App.,  i. 

Indian  Affairs,  Commissioner  of,  348. 

Indian  country,  313. 

Indiana,  admission  of,  298. 

Indians,  in  the  United  States,  91. 

Indictment,  215,  216;  or  presentment  nec 
essary  for  trial,  215,266. 

Indirect  taxation,  82. 

Inspection  laws,  159. 

Interior,  Department  of,  341-349;  salary 
of  Secretary  of,  344,  3-59. 

Internal  Revenue,  system  begun  in  1791, 
84;  act  of  1862,  86;  Bureau  of,  333; 
amount  of,  in  1866,  XJ3. 

Invasion,    protection  from,  239. 

Iowa,  admission  of,  304. 


Jackson,  Andrew,  President,  320. 

Jefferson,  Thomas,  Vice- President,  314; 
President,  3_'0. 

Johnson,  Andrew,  impeached,  193,  195; 
Vice-Pregident,  315;  President,  321. 

Johnson,  llich'd  M.,  Vice-President,  315. 

Journal  of  proceedings,  71. 

Judge- Ad vocate General,  33S. 

Judges,  term  of  office,  195,  197;  compen 
sation  of,  195,  199;  two  classes  of, 
196;  in  18W,  three  classes,  197;  resig 
nation  of,  19.) ;  in  different  States,  368. 

Judicial  circuits,  358. 

Judicial  power,  where  vested,  195;  its  ex 
tent,  200. 

Judiciary,  act  of  17>9,  1%,  199,204.  211,214. 

Jurisdiction,  206,  207;  two  views,  208. 

Jury,  grand  and  petit,  215. 

Jury  trial,  213,  219;  in  criminal  prosecu 
tions,  266;  in  other  cases.  207. 

Justice,  Department  of,  352-35,1;  salaries 
of  officers  of,  355,  359. 

K 

Kansas,  admission  of,  308. 

Kentucky,  admission  of,  295;    from   Vir- 

KinafwiiViaiii' U.,  Vice-President,  315. 
Ku  Ivlux  bill,  275. 

L. 

Land  Office,  346. 
Legislation,  mode  of,  317. 
Legislative  department,  48-161,  314-319. 
Legislatures,  State,  368. 
Lieiitenant-General,  officeof,  129. 
Light-house  Board,  335. 
Lincoln,  Abraham,  President,  321. 
Louisiana,  purchase  of,  234,  298;  secession 

of,  242;  action  of,  244;  reconstruction 

of,  245 ;  admission  of,  298. 

M 

Madison,  James,  President,  320. 

Magna  Charta,  quoted,  213. 

Maine,  admission  of,  299. 

Male  citizens,  right  of,  to  vote,  276. 

Marque,  letters  of,  126;  signification  of, 
127;  forbidden  to  States,  154. 

Maryland,  ratification  of  the  Constitution 
by,  2*8  ;  first  Constitution,  362. 

Massachusetts,  ratification  of  the  Con 
stitution  by,  288;  first  Constitution 
<>f.  36j. 

Michigan,  admission  of,  302. 

Military,Academy  at  West  Point,  333  ;  Jus 
tice,  Bureau  of,  3:57. 

Militia.  Congress  may  call  forth,  etc.; 
laws,  1.13  ;  called  out  three  times,  134  ; 
number  in  war  of  the  rebellion,  135; 
uecossary,  265. 


Ministers  Plenipotentiary,  salaries  of,  325. 

Ministers    Resident,  325;  salaries  of,  326. 

Minnesota,  admitted,  307. 

Minority  representation  in  Illinois,  363. 

Mint,  established,  100;  branches,  100;  a 
bureau,  334. 

Mississippi,  secession  of,  212;  reconstruc 
tion  of,  245  ;  admission  of,  299. 

Missouri  in  1861,  243  ;  admission  of,  300. 

Missouri  Compromise,  301,  303,  308,  309. 

Monarchy,  18. 

Money,  Congress  has  power  to  borrow,  86, 
87;  lias  powvr  to  coin  and  regulate, 
100. 

Monroe,  James,  President,  320. 

Montana  Territory,  312. 


National  teuks,  established  in  1863  109; 
amount  of  circulation,  llo;  advan 
tages  of,  llo;  number  of,  333. 

Naturalization,  power  in  Congress,  91  ; 
under  Confederation,  States  had  the 
power  of,  92;  laws  of,  <J2;  present 
mode,  93;  case  of  soldiers,  93;  re 
stricted,  94;  suffrage  without,  94;  in 
districts,  95  ;  law  of  1870,  96. 

Naval  stations,  310. 

Navy,  Congress  has  power  to  provide  a, 
130;  number  of  ships  and  men  in  1871, 
13o;  officers  in,  131;  government  of, 
131,  132;  department  of.  339-344;  sal 
ary  of  secretary,  340,  33J. 

Navy  Yards,  340. 

Nebraska,  admission  of,  311. 

Nevada,  admission  of,  31 1. 

New  Hampshire,  ratification  of  the  Con 
stitution  by,  289;  temporary  govern 
ment  in  1776, 361. 

New  Jersey,  ratification  of  the  Constitu 
tion  by,  2S8:  temporary  government 
in  1776,  ail. 

New  Mexico  Territory,  .°,0fi,  3:3. 

New  States,  232;  no  general  provision  for 
admitting  in  Articles  of  Confedera 
tion,  232;  t went y -four  admitted,  232  ; 
mode  of  admitting,  2R8. 

New  York,  ratification  of  the  Constitu 
tion  by,  29(1 ;  first  Constitution,  362. 

Nobility,  no  title  of,  shall  be  granted.  153. 

North  Carolina,  secession  of,  242;  recon 
struction  of,  245;  ratification  of  the 
Constitution  by,  290 ;  ceded  her  ter 
ritory,  296  ;  first  Constitution,  362. 

North-west  Territory,  297:  divided,  297. 
Ordinance  for,  Appendix,  xiii. 

Nullification  of  South  Carolina,  256. 

0 

Oath  of  office,  of  President,  175 ;  required  of 

officers,  2 '.6  ;  statutes,  257,  258. 
Observatory.  Naval,  341. 
Ohio,  admission  of,  296-298. 
Ordinance  of  '87,  297,     App.,xiii. 
Oregon,  admission  of,  307. 
Original  jurisdiction  of  courts,  206,  207. 

P 

Pardons,  power  to  grant,  in  the  President 
175;  before  conviction,  177. 

Patent  Office,  established,  121  ;  receipts 
of,  124  ;  reports,  124  ;  a  bureau  in  the 
Department  of  the  Interior,  345. 

Patents,  power  over  in  Congress,  119  ;  his 
tory  of,  121  ;  Commissioner  of,  121  ; 
for  term  of  seventeen  years,  122; 
formerly  by  the  States,  122  ;  mode  of 
obtaining.  123. 

Pay  of  Army  officers,  33s  ;  of  privates,  3°,9  ; 
of  Navy  officers,  342;  of  seamen,  344. 


INDEX. 


XXXV11 


Teck,  James  H.,  impeached,  193,  194. 

Pennsylvania,  its  legislature  in  1787,  48; 
ratilicatiou  of  the  Constitution,  by, 
288;  first  Constitution,  362. 

Pension  Office,  345. 

People,  right  of  to  assemble,  264,  265;  the 
source  of  power,  270,  370. 

Pickering,  John,  impeached,  193,  194. 

1  ierce,  Franklin,  President,  S21. 

I  iracy,  clause  concerning,  125. 


olitical  powers,  210,  235. 


oik,  James  K.,  President,  321. 

1  ostage,  115;  letter,  116. 

1  ostal,  cards,  116  ;  money-order  system, 
117  ;  telegraph,  119. 

Postmasters,  115. 

Postmasters-General,  salary  of,  350,  359; 
list  of,  351  ;  Assistants,  351. 

Post-office,  Congress  power  to  establish, 
114  ;  number  of  in  1790,  and  1872,  114  ; 
Department  established,  349. 

Postroads,  Congress  power  establish,  114  ; 
internal  improvements,  118. 

Pound  Sterling,  value  of,  105. 

Powers  not  delegated.  268  ;  none  delegated 
by  the  States,  270. 

Presentment,  215,  216,  266. 

Presents  from  foreign  powers,  153;  pro 
posed  amendment,  153.  282. 

President  of  United  States  has  veto 
power,  77  ;  term  of  office,  161  ;  seven 
re-elections,  163  ;  mode  of  electing, 
1M-171  ;  amendment  in  regard  to 
electing,  166;  chosen  by  House  of 
Representatives  twice,  168,  169; 
qualifications  of,  171  :  case  of  re 
moval  of,  172-174;  compensation  of, 
174  ;  oath  of  office,  175  ;  commander- 
in-chief  of  the  army  and  navy,  175; 
power  to  reprieve  or  pardon,  175; 
power  as  to  treaties,  179:  power  as 
to  appointments,  179;  power  to  fill 
vacancies  in  recess  of  Senate,  187; 
annual  message,  188.  189;  may  call 
special  sessions,  188;  may  adjourn 
Congress,  188  ;  shall  receive  ambas 
sadors,  188;  shall  see  that  laws  are 
executed,  188  ;  list  of,  319. 

President  pro  tempore  of  Senate,  63;  com 
pensation  of,  73. 

Press,  freedom  of,  264,  265. 

Proprietary  governments,  25,  27. 

Provincial,  or  royal  governments,  25    27 

Public  Debt,  of  U.  S.,  amount  of,  87;  va 
lidity  of,  279;  incurred  in  aid  of  re 
bellion  declared  void,  279. 

Punishments,  cruel  and  unusual,  267. 


Quorum,  a  majority,  in  Congress,  69;  in 
Illinois,  363. 

R 

Ratification,  of  an  Amendment  to  the 
Constitution,  can  a  State  withdraw 
her,  252;  by  disloyal  States,  253;  of 
the  Constitution,  by  conventions, 
259,  2fiO;  case  of  Rhode  Island  and 
North  Carolina,  261. 

Rebellion,  disabilities  from,  277. 

Reconstruction  of  States,  242-245;  West 
Virginia  and  Missouri,  243. 

Register  of  the  Treasury,  duties  of,  332. 

Registration  of  letters,  116. 

Religion,  law  respecting,  264 ;  free  exer 
cise  of.  guarantied.  261. 

Religious  test  for  office  prohibited,  257; 
action  of  South  Carolina,  259. 

Removal  from  office,  1S3-187. 

Reporters  of  the  Supreme  Court,  200. 

Representation,  50-55;  basis  of,  53;  ratios 
the  successive  decades,  54. 


Representatives,  term  of  office,  48;  how 
chosen.  48;  qualifications,  49;  ap 
portioned  among  the  States,  50; 
number  in  First  Congress,  50  ;  num 
bers  in  successive  decades,  54  ;  va 
cancies,  how  filled.  55,  choose  their 
speaker,  55  ;  have  power  to  impeach, 
55;  number  oi,  reduced  if  the  right 
to  vote  be  denied,  275;  number  ot, 
281 ;  compensation  of,  282,359;  in 
State  legislatures,  368. 

Reprieves,  power  to  grant,  175-177. 

Reprisal,  letters  of  marque  and,  126;  sig- 
fication  of,  127,  forbidden  to  States, 

Republic  defined,  18. 

Republican  form  ot  government  guaran 
tied  to  the  States,  239;  defined,  240. 

Retired  officers,  of  the  army,  pay  of,  338  ; 
of  the  navy,  343. 

Revenue,  bills  originate  in  House  of  Rep 
resentatives,  76;  Commissioner  ot 
Internal,  85. 

Rhode  Island,  no  constitution  till  1842, 
26;  the  Dorr  rebellion,  240;  ratifi 
cation  ot  the  Constitution  by,  291; 
first  constitution,  362. 

Rights,  enumeration  of,  268;  difference 
between  political  and  civil,  276. 

Rules  of  proceedings,  70. 


Science,  clause  for  promoting,  119. 

Searches  and  seizures,  26C>. 

Secession,  of  eleven  States,  242;  doctrine 
of,  discussed,  245. 

Secretaries  of  State,  list  of,  323;  six  be 
came  Presidents,324. 

Secretaries  of  the  Interior,  list  of,  345. 

Secretaries  of  the  Navy,  list  of,  339. 

Secretaries  of  the  Treasury,  list  of  328. 

Secretaries  of  War.  list  of,  336. 

Secretary  of  Legation,  326. 

Seignorage,  Iu4. 

Senate,  how  composed,  56;  differences  in 
convention  as  to,  57:  a  permanent 
body.  r,n:  vacancies,  how  filled,  61; 
Vice-President  the  President  of,  62; 
President  pro  tempatv,  63;  power  to 
try  impeachments,  64. 

Senators,  how  elected,  59;  divided  into 
three  classes,  59;  doctrine  of  "in 
struction,"  61;  qualifications.  62; 
in  State  legislatures,  368. 

Sessions  of  Congress,  annual,  67;  eleven 
instances  of  three,  by  same  Con- 
giess,  08. 

Signal  office,  337. 

Silver,  reduction  of,  in  coins,  in  1853, 
101  ;  legal  tender  for  small  sums 
since  1*53,  102;  ratio  to  gold,  102; 
coins  of  1873,  103;  trade-dollar,  1(14. 

olavery,  abolished  in  U.  S.,  146,271;  word 
first  used,  271 ;  proposed  amendment 
to  perpetuate,  282. 

Slaves,  importation  of,  clause  regarding, 
144;  prohibited  in  1808,  145;  sum 
mary  as  to  slavery  and  the  slave- 
trade,  145;  payments  for  emanci 
pation  of,  forbidden,  279. 

"Social  Compact,"  meaning  of,  12;  not 
the  source  of  civil  authority,  13;  the 
fallacy  of  the  theory,  13. 

Society,  the  natural  state  of  man,  12;  its 
authority,  13;  of  divine  origin,  14. 

Soldiers  not  to  be  quartered  in  houses 
without  consent,  265. 

Solicitor  General,  354. 

South  Carolina,  secession  of.  242;  recon 
struction  of,  245 ;  ratification  of  the 
constitution  by,  288;  temporary  gov 
ernment  in  1776,  »il. 


XXXV111 


INDEX. 


Sovereignty  in  the  nation,  15,  370. 

Speakers  of  House  of  Representatives,  55  ; 
salary  of,  73,  359;  list  of,  316. 

Special  sessions  of  Congress,  189. 

Speech,   freedom  of,  2(54,  2(15. 

Spirit  ration  abolished  in  Navy,  344. 

Stamp  duties,  84-86. 

State  Department,  .•522-328  ;  duties  of,  323  ; 
salary  of  the  Secretary,  323,  359. 

States,  their  relation  to  the  nation,  21  ; 
prohibitions  on,  154-161,  273 ;  have  not 
exercised  powers  of  sovereignty,  154; 
out  of  the  Union,  not  supposable, 
238;  not  compelled  to  remain  such, 
238 ;  guaranty  to,  of  a  republican 
form  of  government,  239;  duties  on, 
enjoined  by  the  Constitution,  241  ; 
may  not  be  sued  by  citizens  of 
other,  271  ;  origin  of,  294,  312. 

Statistics,  Bureau  of,  331. 

Suffrage,  in  Continental  Congress,  51;  in 
House  of  Representatives,  51  ;  by 
those  not  naturalized,  95;  in  some 
States,  95;  of  women,  276;  in  differ 
ent  States,  369. 

Superintendent  of  the  Census,  318. 

Supremacy  of  the  Constitution  and  Laws 
of  the  U.  S.,  255. 

Supreme  Court  of  U.  S,,  constitutional 
provision  for,  195 ;  organization  of, 
left  to  Congress,  196  ;  has  pronounced 
void  but  tfiree  acts  of  Congress,  211  ; 
list  of  Chief  Justices  of,  356;  list  of 
Associate  Justices  of,  357;  salaries 
of  Justices,  35'.). 

Supreme  Court  of  Dist.  of  Columbia,  l'J8  ; 
salaries  of  Justices  of,  359. 

Surveyor,  in  the  custom-house,  335. 

Surveyors  General,  of  the  land  office,  346. 


Taxation  by  States,  160. 

Taxes,  power  of  Congress  to  lay,  81  ;  di 
rect  and  indirect,  82;  direct  laid  but 
five  times  by  U.  S.,  82. 

Taylor,  Zachary,  President,  3il. 

Tennessee,  secession  of,  242;  reconstruc 
tion  of,  214  ;  admission  of,  295  ;  pre 
viously  a  territory,  296. 

Tenth  Amendment,  268;  often  misquoted 
and  perverted,  269;  meaning  of,  270. 

Territorial  Courts,  359. 

Territories,  312;  government  of,  313. 

Territory,  of  U.  S.,  under  control  of  Con 
gress,  232;  Ordinance  of  1787  prior 
to  Constitution,  234;  no  provision 
in  Constitution  for  acquisition  of, 
234;  power  to  acquire  incident  to 
national  sovereignty,  234  ;  sover 
eignty  of,  vested  in  the  nation,  236 ; 
relation  of,  to  the  Union.  237  ;  differ 
ence  between  a  State  and,  237. 

Texas,  annexation  of,  234 ;  secession  of,  i 
242;  reconstruction  of,  245;  admis-  ; 
sion  of,  3n3. 

Thirteenth  Amendment,  271 ;  ratification 
of,  272.  - 

Titles  of  nobility,   proposed  amendment 

TompkhVs,'V>aniefD.,  Vice-President,  315.  j 

Trade-marks,  patents  for,  123. 

Treason,    defined,    219;     petit    and    high, i 
22»  ;  constructive,  220;   Aaron  Burr  ] 
tried  for,  in   1807,  222;    Congress   to 
declare  punishment  for,  1:22;   the  act 
of  1790,  that  of  1862,  224  ;  no  treason 
against  a  State,  225. 

Treasurer,  duties  of,  331. 

Treasury  Department,  32s-335 ;  salary  of! 
the  Secretary,  32*.  359. 


Treasury  notes.  88;  various  kinds,  105; 
made  legal  tender  in  1862,  105;  are 
"bills  of  credit,"  106;  decision  of 
Supreme  Court  as  to,  106;  not  real 
money,  107. 

Treaties,  powers  of  the  President  and 
Senate  in  making,  179:  limitations 
of  the  power  of,  180;  case  of  payment 
of  money,  180  ;  now  framed,  182. 

Treaty,  etc.,  no  State  shall  enter  into  any, 
154 ;  clause  in  Articles  of  Confedera 
tion,  155. 

Trial,  by  jury,  213;  question  of  unani 
mity,  214  ;  by  military  commission, 
218;  in  the  State  where  the  crime 
was  committed,  266. 

Tyler,  John,  Vice-President,  315;  Presi 
dent,  315,  320. 

U 

Unconstitutional,  only  three  acts  of  Con 
gress  decided  to  be,  21 1 . 

Union,  relation  of  seceded  States  to  the, 
246;  admission  of  new  States  into, 
252-239, 294-31 2. 

Useful  Arts,  clause  for  promoting,  119. 

Utah  Territory,  306,  313. 


Van  Buren,  Martin,  Vice-President,  315; 
'President,  320. 

Vermont,  admission  of,  294;  from  New 
York,  295. 

Veto,  by  the  President,  77 ;  use  of,  by 
different  Presidents,  78 ;  not  appli 
cable  to  Amendments  to  the  Consti 
tution,  80  ;  of  Civil  Rights  Bill.  227, 
bill  passed  over,  how  certified,  319. 

Vice-President,  President  of  the  Senate, 
62;  no  Vice-President  contemplated 
at  first,  62  ;  term  of  office,  161;  mode 
of  electing,  161-171  ;  chosen  by  Sen 
ate  once,  169;  list  of,  314;  salary  of, 
314,  359;  no  provision  for  filling  va 
cancy  in  office  of,  315. 

Virginia,  secession  of,  242  ;  reconstruction 
of,  245  ;  ratification  of  the  Constitu 
tion  by,  289  ;  temporary  government 
in  1776,  361. 

Vote,  right  to,  280. 

Voting,  various  modes  in  Congress,  71. 


War,  Congress  has  power  to  declare,  126  ; 

no  formal  declaration  of,  in  the  wars 

of  the  U.  S.,  126, 127. 
War    Department,   335-339;    established, 

335  ;  salary  of  the  Secretary,  336,  359. 
Warrants  for  search  must  be  special,  2ti(i. 
Washington,  George,  elected  General,  32  ; 

President,  319. 

Washington  Territory,  308,  312. 
Weights    and    measures,    Congress    has 

power    to    regulate,    loo,    110;     the 

metric  system  authorized,  ill. 
West  Virginia,  243;  admission  of,  309. 
Wilson,  Henry,  Vice-President,  315. 
Wisconsin,  admission  of,  305. 
Witnesses,  English   practice  as    to,  218; 

rights  of  accused  persons  to,  217,  266. 
Wyoming  Territory,  306,  312. 


Yeas  and  nays,  in  Congress,  71  ;  under 
Articles  of  Confederation,  71:  used 
to  delay  proceedings,  71  ;  in  Illinois, 
363. 


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